§ Mr. Tam Dalyell (Linlithgow)
I beg to move amendment No. 91, in page 1, line 9, after 'authority' insert 'or justification'.
With this, we may discuss the following amendments: No. 1, in page 1, line 10, after 'relating to' insert 'the lawful activities of.
No. 2, in page 1, line 10, at end insert 'activities'.
No. 90, in page 1, line 13, at end insert—'(1A) For the purposes of subsection (1) above a disclosure is made with justification if the person making the disclosure has reasonable grounds for believing that it is necessary to make it to indicate the existence of crime, fraud, abuse of authority, neglect of public duty or a threat to public safety.'
No. 81, in page 1, line 27, after first 'the' insert 'lawful'.
No. 19, in page 2, line 24, after 'the' insert 'lawful'.
No. 94, in page 5, line 23, after 'if', insert'other than for the purposes of consulting a solicitor in relation to any unlawful activities of the security or intelligence services'New clause 1—Public interest defence (No. 1)'It shall be a defence for a person charged with an offence under this Act to prove that disclosure or retention of the information or article was in the public interest in that 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.'.
New clause 4—Public interest defence (No. 2)'.—(1) 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.(2) In the case of a Crown servant or government contractor charged with an offence under sections 1, 2, 3. 4, 6 or 8 of this Act subsection (1) above shall only apply if he has taken reasonable steps to comply with any established procedures for drawing such misconduct to the attention of the appropriate authorities without effect.'.New clause 5—Public interest defence (No. 3)'(1) It shall be a defence for a person charged with an offence under this Act to prove that the disclosure of information, document or other article for which he has been charged was in the public interest, having regard both to any damage actually caused by the disclosure and any benefit to the public interest from it; or that he had reasonable cause to believe at the time of the disclosure that it was so in the public interest.(2) In the case of a Crown servant, government contractor or person notified under section 1, the defence in subsection (1) above shall only be available if he has, without effect taken reasonable steps to comply with any established procedures for making such disclosures to the appropriate authorities.'.New clause 8—Disclosures where public safety is threatened'( ) It shall be a defence for a person charged with an offence under this Act to show that the disclosure or retention of the information, document or other article was in the public interest insofar as it revealed the existence of an imminent and serious threat to public health or safety, provided that effective steps to remove that threat had not been taken.'.New clause 10—Disclosure of evidence of fraud'It shall be a defence for a person charged with an offence under this Act to prove that the disclosure indicated the existence of fraud, corruption or the misappropriation of public funds which had been reported to the appropriate authorities without effect.'.
§ Mr. Dalyell
As clause 1 stands, the situation could arise in which a person would be automatically guilty of a criminal offence without any possibility of a defence of any kind if it was true that he made a relevant disclosure without lawful authority. The words "without lawful authority" are not defined and are unacceptably imprecise. They would be open to wide or narrow construction by the courts.
441 The primary purpose of amendment No. 91 is to avoid the potentially absurd situation in which, for example, a senior official was automatically guilty of a criminal offence because it was held that lie had made a disclosure, that the courts might in future hold to have been done "without lawful authority". Amendment No. 91 seeks simply to introduce the words "or justification" after "lawful authority", so leaving it open for the courts to determine, according to the circumstances of the particular case, whether the disclosure was justified in the absence of lawful authority.
Justification must, of course, be defined and that is the purpose of amendment No. 90. In substance, it amounts to the same thing as some of the public interest defences proposed by the new clauses. Technically, however, amendments Nos. 90 and 91 are preferable, as they avoid the difficult situation where a judge has to explain to a jury the difference between a primary charge where the onus, as always, is on the prosecution, and a defence where the onus is on the accused. Amendments Nos. 90 and 91 ensure that the absence of authority, or justification, is built into the primary charge, clearly leaving the onus where it should be—always on the prosecution. The content of amendment No. 90 is, of course, open to discussion, but the principle is sound.
The amendment raises issues of fundamental importance to the House—the duty of Ministers to tell the truth, and the abhorrence felt by hon. Members on all sides, regardless of party if the House is deliberately deceived. We require that the truth he told to us, and not merely as a matter of personal ethics, for to deceive Parliament is a far greater offence than to deceive one's associates. It is an offence against the basis of our system of democracy.
How do we in the House protect ourselves against this injury? We may cross-examine Ministers on the Floor of the House or in Select Committee. But if Ministers wish to choose to remain silent and refuse to justify their statements or to document their assertions, they do so; and if they wish to prevent their officials from replying to questions, the officials do not reply.
Hon. Members will remember how many vital questions about the conduct of the Westland affair were never answered, either on the Floor of the House or before the Select Committee. I refer, just in passing, Mr. Deputy Speaker, to Sir Leon Brittan's appearance before the distinguished Select Committee on Defence. If I may be forgiven for saying so, I refer, also in passing, to the Prime Minister's answer to question No. 2 this afternoon. Do not be under any illusion that parliamentary questions provide any kind of effective scrutiny of legitimate issues.
This afternoon I had a substantial question on the Order Paper—not one of those open questions—but the Prime Minister was easily able to brush it aside because of the nature of parliamentary questions. I use that as an example of why it is necessary to have this sort of amendment.
How does the amendment protect us against injury? I believe that anyone reading our proceedings in Hansard of 25 January would be rather shocked that an officer of the security services who informed an hon. Member that his or her phone was being tapped illegally would commit an offence. By illegally, I mean without a warrant or any suggestion that it is required in the interests of national security.
442 Where the interception is done for purely a party political reason, how do we treat the officer who reveals such disgraceful behaviour? The Government have put before us a Bill that proposes that he or she be put in prison for as long as two years. The House should not accept that disgraceful proposition.
How does the Bill protect us from a Minister who tells untruths to the House? It does not protect us; in fact, it protects the Minister. If a lie is exposed by someone who has been privy to the private discussions of those involved, the Bill punishes that person. He or she may be prosecuted, and cannot argue that the disclosure exposed was a deliberate deceit of the House, or that the disclosure protected the rights of the House to be told the truth,
Ministers know that if they sought to suppress such a disclosure by an injunction, they would have grave difficulty in securing it. They might obtain a temporary injunction, but ultimately there would be a full hearing. If the defendant showed that a disclosure revealed iniquity, the injunction would not be granted. That is how the courts have interpreted the civil law of confidence.
Hon. Members know that section 2 of the Official Secrets Act 1911 has been used to punish those who have exposed the dishonesty of Ministers, and have been caught acting essentially as deep throats. It has been used by the Government. I will say more about it in relation to the case of Clive Ponting, but not at inordinate length.
This is a non-party matter The Sunday Telegraph trial of 1970 was brought by a Labour Attorney-General over disclosures showing that Parliament had been deceived by Ministers of that Government. It would be better for the hon. Member for Thanet, South (Mr. Aitken), if he catches your eye, Mr. Deputy Speaker, to deal with that case in greater detail, but 1 recognise that I do not speak on a party basis.
I deliberately mentioned both cases, because it is not a party political matter. The use of the law in this way and the use to which the new Bill may so easily be put are offences against the House as a whole. I crave the indulgence of my colleagues to say a little about the case of Clive Ponting. In a sense., I have seen the Bill as an anti-Clive Ponting jury Bill. We may not have had this debate had it not been for the Ponting case. Other than when there were heavy three-line Whips, I attended the 11-day hearing at the Old Bailey. I speak against that background because there are lessons to be drawn.
The Clive Ponting case was unique and it strongly influenced the Government's approach to replacing section 2 of the Official Secrets Act 1911. In the public mind, whatever Governments may say about the unanimous verdict of not guilty, the Ponting trial jury clearly established that the interests of the state are not necessarily the same as the interests of the Government of the day. It also established that Clive Ponting's action of disclosure could be successfully defended in court under section 2(1)(a) of the Official Secrets Act 1911, which states that it is not a misdemeanour to communicate information toa person to whom it is in interest of the State his duty to communicate itIn other words, in such circumstances a civil servant can claim a public interest defence.
As hon. Members know, the Government were extremely displeased with the outcome of the Ponting trial.
§ Mr. Nigel Spearing (Newham, South)
Does my hon. Friend agree that the document that he received from the gentleman he mentioned suggested that the Government were economical with the truth in the Foreign Affairs Select Committee? It revealed that any extension of what he called "our joint position"—that is, the Government's position—would reveal what I consider to be at least a disreputable diplomatic manoeuvre. Might it not be an even stronger case to say that if a Labour Government embarked on a questionable and controversial exercise, perhaps controlled by three leading members of the Cabinet, Conservative Members might agree that Mr. Ponting's action was the right thing in the national interest? Is that not the objective test that we should apply, and does it not support the argument?
§ Mr. Dalyell
I am careful on this subject. Before giving blank assent to what my hon. Friend has said, it would be more appropriate to read Hansard. I think that I agree with that proposition.
I think that I know Conservative Members' views on the behaviour of Mr. Ponting, but I say one thing in riposte. Mr. Ponting acted as he did because he was outraged at the treatment of Parliament. I speak for myself, and I believe that that was his motive.
§ Mr. Ray Whitney (Wycombe)
On the behaviour of Mr. Ponting—I hope not to detain the hon. Gentleman too long—does he agree with the assessment in Mr. David Hooper's book? There is no question that Mr. David Hooper supports the Government on these matters. He said that the odds were long against Mr. Ponting being acquitted at the trial. He went on to say:However, Ponting's choice of Dalyell, who was neither his constituency MP nor a Privy Councillor and had form for leaking, his attempt to remove all identifying marks from the documents, his alleged untruthfulness when first asked whether he was the culprit, his failure to exhaust Civil Service remedies for his grievances, and his attempts to blame others were better explanations of the odds.Will the hon. Gentleman comment on that?
§ Mr. Dalyell
I do not know whether it is realistic to expect Mr. Ponting to knock on Sir Robert Armstrong's door and say "Please, sir, I do not think that the Government are behaving very properly."
§ Mr. Dalyell
From a sedentary position, the Minister asks "Why not?" Career matters and a human factor are involved. There are real problems in using the usual channels. I think it is slightly egregious to say that the Cabinet Secretary is always available.
§ Mr. Norman Buchan (Paisley, South)
On the specific point about Mr. Ponting speaking to Sir Robert Armstrong, he was a Cabinet Secretary who was quite prepared on a later occasion to accept that he was being "economical with the truth". Was there any reason for Mr. Ponting to think that the truth would necessarily have been delivered had he spoken to Sir Robert?
§ Mr. Dalyell
That is a hypothetical or rhetorical question. I should like to reply to my hon. Friend who made a friendly interruption and to the hon. Member for Wycombe (Mr. Whitney).
I read one chapter of Mr. Hooper's book, but not the one which the hon. Gentleman quoted. I did not read the whole book. The hon. Member for Wycombe quoted Mr. Hooper as saying that Dalyell behaved in such a way. Dalyell behaved quite properly on that occasion, because I did not go to the press. I kept it as a proceeding in Parliament. I went frankly to Anthony Kershaw, who was the Chairman of the Select Committee. I was naive enough to imagine that he would be schocked at how his Select Committee had been deceived. It was Kershaw's responsibility. He immediately went to the right hon. Member for Henley (Mr. Heseltine). I did the proper thing, because that kept it as a proceeding in Parliament. I do not know whether it weighed with the Ponting jury, but it certainly was a factor.
§ Mr. Chris Smith (Islington, South and Finsbury)
As the constituency Member for Clive Ponting, I put two brief propositions to my hon. Friend. First, it was perfectly understandable and justifiable that Mr. Ponting chose my hon. Friend as the person to send the information to. He knew that my hon. Friend had been asking serious questions about the matter germane to the information that he had. It was because of those questions and because of my hon. Friend's known interest in the matter that he chose that route of disclosure. That seems to me to be an entirely justifiable course of action.
Secondly, it was quite clear that, when called upon to come to a verdict at the Old Bailey, the jury rapidly and unanimously rejected the clear advice that they had been given by the judge that the interests of the state spelt out in the existing law were exactly equal to the decisions of the Government of the day. The jury rightly rejected that advice from the judge. That surely is the nub of the point that my hon. Friend is making.
§ Mr. Eric S. Heffer (Liverpoool, Walton)
Will my hon. Friend not confine himself solely to the case of Mr. Ponting? I agree that Mr. Ponting was right and that the jury was right. But this is a much wider issue involving the rights of all people, whether they are civil servants or others, who will be affected by the Bill. The nitty-gritty of what happened in relation to Mr. Ponting is agreed. I think most hon. Members with any intelligence accept that the jury was right. I hope that my hon. Friend will come to the wider issue of all who may be affected by the Bill. I accept that Mr. Ponting's case was of great importance, but it is not the only issue involved.
§ Mr. Dalyell
I accept that it is not the only case. There are many other hon. Members in the Chamber who are supremely qualified to talk on general issues. I think that I am justified in detaining the Committee a little longer on what happened at the Old Bailey, because there are important lessons to be learnt for the amendment from those proceedings.
The Government intend to make it impossible for a civil servant ever again to claim a public interest defence should he reveal privately to a Member of Parliament that 445 Ministers are intentionally misleading Parliament. This has never been tested in the higher courts or by the Law Lords. I see my right hon. and learned Friend the Member for Warley, West (Mr. Archer), the former Solicitor-General, nodding his head. The Bill raises a crucial question. Is the security of the state enhanced by preventing Parliament from being informed when it has been misled intentionally by Government Ministers? As Mr. Bruce Laughland, QC for Clive Ponting, said:This is not a case about spying. It is a case about lying or misleading Parliament.In view of the constitutional importance of the Ponting case, it is worth recalling certain significant aspects of the highly political trial, particularly the extraordinary events of 6 and 7 February 1985 which were not fully publicised and which revealed clearly what the Government were about.
The Government did everything in their power to secure the conviction of Clive Ponting. In The Guardian of 13 September 1984 there had been a reference to a meeting of Whitehall information officers at which the Prime Minister's press secretary, Mr. Bernard Ingham, was reported to have said that the Government were quite set on prosecution; indeed, it was hoped that an appropriately severe member of the judiciary would be on hand to hear the case. Mr. Ingham was reported to have named a couple of judges whom he thought suitable. It was also said that he regretted that Judge Jeffreys had passed on. Then the Government ensured that the trial jury was vetted, even though, as Mr. Roy Amlot QC, prosecution counsel, said on the first day of the trial:It is not suggested that the disclosure in fact damaged national security.I think I have the assent of my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees) on that.
At lunch time on Wednesday, 6 February 1985—day 8 of the trial—some extraordinary and revealing events started to take place in court No. 2 at the Old Bailey. Just before 1 o'clock, the judge, Mr. Justice McCowan, sent the jury home until 10.30 am the next day as the afternoon was to be taken up with legal submissions relating to legal definitions of the offence and the terms of the judge's pending summing up to the jury. The press and the public were present throughout the afternoon and the judge did not put any reporting restrictions on the events that took place.
As a consequence The Observer of 10 February 1985 carried an article by David Leigh on the afternoon's proceedings. It was the only newspaper to report those events, although Ivan Rowan in the Sunday Telegraph of the same date wrote:Because the jury was out of court, I cannot tell you what was said. . . . This particular afternoon—it was Wednesday— turned into an absolute thriller, with a double-twist at the very end that even Agatha Christie never equalled.Because the public and the press were allowed to remain in court that afternoon, they were given a remarkable insight into the behind-the-scenes working of the supposedly non-political trial.
The first bombshell was dropped immediately before lunch, just after the jury had left the court. The judge indicated that if he accepted the prosecution's submission, he would have no alternative but to direct the jury to convict. After lunch, detailed discussions took place on the meanings of the two key words in the trial—"duty" and "state". The judge told the prosecution counsel, Mr. Amlot, that if he, the judge, accepted the prosecution's 446 definition of the interest of the state, that is, that this was synonymous with the policies of the Government of the day, as he was inclined to do, he would have no alternative but to direct the jury to convict. Mr. Amlot responded:I would be very reluctant to seek to persuade you to a direction to convict".The judge repeated his opinion. Mr. Amlot stressed his point by saying, in very positive terms:I am very reluctant in this of all cases that you should finish up directing the jury to convict".The Home Secretary shakes his head; he will no doubt make his own speech, but I think that there is an important point here. It reveals that Roy Amlot had very grave doubts about precisely what we are now being expected to do as a House of Commons. We look to the Home Secretary for an explanation of the difficult problem of direction of a jury.
Mr. Justice McCowan pointed out that it would be very difficult for a judge to invite a jury to convict if the prosecution counsel for the Crown advised otherwise. Mr. Amlot asked if he could reflect on the matter overnight. The judge said that he would prefer a short adjournment that day. That was agreed. Mr. Amlot hurriedly wrote a note to Sir Thomas Hetherington, the Director of Public Prosecutions, who was sitting behind him, as he had been throughout the trial. The DPP quickly left the court, almost certainly to seek guidance; at least, that is what I thought. Meanwhile, Mr. Amlot continued by pointing out that it would be unconstitutional for a judge to direct a jury to return a verdict of guilty.
§ Mr. Dalyell
He said that a judge might give his opinion as advice, but not direction. I am glad to have the assent of my right hon. and learned Friend, a former Solicitor-General.
Sir Peter Hetherington returned to the court, and at 4.25 pm the court adjourned for 10 minutes. The judge also left the court. When the judge returned, Mr. Amlot stated:Even if the ruling is in our favour, we do not ask for a direction to convict.Mr. Justice McCowan said that after considering certain legal authorities, he had changed his mind. For a trial which purported to be non-political, the events of the afternoon of Wednesday 6 February had been most revealing.
The next morning, prior to the return of the jury, the legal submissions continued and were mainly concerned with the meaning of the key words "duty" and "state". During those submissions, the judge pointed out that the jury was not the body to decide what the interest of the state should be.
The jury returned to the court just after 11 am and the final speeches for the prosecution and defence were delivered. Mr. Bruce Laughland, the defence counsel, concluded with these words:We say that he"—that is Clive Ponting—was faced in good conscience with an obligation to do his duty, a duty which was in the true interests of the State and that it was one from which he did not shrink. If what he did was a crime for which he renders himself liable for punishment, you know it could be a licence for Ministers to withhold from Parliament information with the tame acquiescence of their Civil Servants and so to infringe our liberties. And, if what he did was a crime in English law, you say so. But if it is, God help us, because no government will.447 It is up to the House to reflect on what a Government would do in such a situation.
§ Mr. Archer
So that we can be clear about what my hon. Friend is saying, does he agree that there were two quite separate legal issues? The first was whether the public interest question should be left to the jury and the second was whether it could ever be right for a judge to direct a jury to convict—which, of course, in the end the judge did not. Does my hon. Friend agree that the real indictment of the law was that the jury, in effect, had to fly in the face of the judge's direction on law to arrive at a verdict which they found acceptable? That means that the House should look at the law again.
§ Mr. Dalyell
My right hon. and learned Friend is one of my oldest friends in the House, in both senses of the word. He is a distinguished lawyer and I am a layman. I shall not take issue with him, and I shall accept those propositions.
Mr. Justice McCowan's summing-up appeared to be aimed at dismissing the case for the defence. The jury retired at 11.15 am on the last day of the trial, and returned at 2 pm to deliver a unanimous verdict of not guilty.
Immediately after the verdict was announced, Mr. Amlot shook hands with Mr. Laughland in a gesture that was not in accordance with normal court procedure—so I am told. They were warm and generous congratulations.
That was clearly a most important verdict. It was the jury who decided the outcome of the case. Without a jury, the outcome would have been very different. The unsuccessful attempt by the Government to establish thatthe interest of the statewas invariably the same asthe interest of the Government of the dayhas underlined the importance of trial by jury in certain cases.
Nobody would want to put national security at risk by revealing genuine state secrets, but where national security is not involved, it is a misuse of the law to try to use it to protect the Government from embarrassment by preventing disclosures to Members of Parliament that Ministers are misleading Parliament. It cannot be right that the last resort of a civil servant to inform Parliament of serious wrongdoing by Ministers is to be withdrawn by a new law that will put him in gaol for so doing. That is no way to protect the security of the state; nor is it the way to protect parliamentary democracy.
It is clear that something extremely serious is about to happen. If a Government can succeed in passing a law that makes it a crime punishable by imprisonment for a civil servant to inform a Member of Parliament of serious malpractices by Ministers, the door will be opened to enable the destruction of the sovereignty of this House and this Parliament. I see that my right hon. Friend the Member for Blaenau Gwent (Mr. Foot) nods his head. I believe that there is a good deal of agreement among serious people about this matter.
§ Mr. Spearing
I want to make one point absolutely clear. It might be interpreted from my hon. Friend's speech that the information Mr. Ponting passed to him was gratuitous, in that it revealed something that otherwise was not known, which it did. Does he not agree, however, that in this case the importance of that document was that 448 the Select Committee had specifically asked for certain information, and that the document that my hon. Friend received showed that the draft replies to those questions would be such as could mislead the Committee? In other words, it was revealing not just that Ministers were misleading the House, but that they were intending to mislead in relation to specific questions asked by a Select Committee of the House.
§ Mr. Dalyell
My hon. Friend, along with Ian Mikardo, put in an enormous amount of work on their Foreign Affairs Committee minority report covering the events of 1 and 2 May 1982. My hon. Friend knows a great deal about this matter, and I accept his proposition, which raises an important point. When my hon. Friend makes these interventions, he does so with considerable detailed knowledge.
The Bill would prevent Parliament from being informed of such malpractices and, therefore, prevent Parliament from exercising its power to investigate and restrain such wrongdoing and would leave the continuation of such malpractices safe in the hands of a rogue Government. There is now a real danger that Parliament will soon be voting to ensure that that happens. That is what we are up against. However, before taking that step, Parliament would do well to consider the situation that would exist if the Government were the party in opposition and not the party in power.
§ Mr. John Gorst (Hendon, North)
I have been following the hon. Gentleman's speech with considerable interest and with a growing belief in its correctness. Is there not, however, another implicit inference to be drawn from his argument? It appears that he has been painting a rather black and white picture. On the one hand, his premise is that there is the law and, on the other, there is illegality—there is nothing else. I put it to the hon. Gentleman that there is an unacknowledged twilight situation in which there is wrongdoing, law-breaking or the infringement of liberties, which, if his amendments are not carried, would be sanctioned by the state. Irrespective of whether it is possible to raise them in the House, the law would have that effect unless it is amended in the way suggested by the hon. Gentleman.
§ Mr. Dalyell
The hon. Gentleman has made an extremely perceptive intervention. I may appear to be putting it in black and white terms, but my colleagues would not wish me to go on for much longer. Part of the problem is that this is very much a situation of various shades of grey, and anyone who looks at these matters seriously cannot be too dogmatic. I accept the importance and, indeed, the validity of the hon. Gentleman's intervention.
Although a number of other changes in the Bill are to be welcomed, because they clarify many of the poorly defined areas in the original Act, undue emphasis on the scope of those changes must not be allowed to obscure the elimination of the all-important safeguard of the public interest defence. If that last ditch defence is lost, we shall have set up the legal framework necessary to enable a Government to establish and maintain a rather toothless Parliament.
If a new law is passed, which makes the act of passing the information itself a serious crime with no public interest defence available, the only issue for the jury then would be whether the information was passed or not. If the 449 defendant admits that it was, or if there is no doubt about it, the jury must find the defendant guilty of the specified crime.
In view of the now established importance of the jury in such cases, it could be to the defendant's disadvantage if the matter were taken up in the civil courts, should the Bill be passed with a public interest defence provision. A jury in a civil court is now a rarity. The Peter Wright case was heard in the civil courts with no jury and treated as a breach of confidentiality rather than a breach of the Official Secrets Act 1911. That might be one way round the prosecution's jury problem in the criminal courts. Hon. Members will recall Mr. Justice McCowan's remark in the Ponting case. He said:the jury is not the body to decide what the interest of the state should be.I say to my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) that I have gone into the Ponting case. There are conclusions to be drawn. It is not a matter of black and white and I shall listen with very great care to what my colleagues and other hon. Members of the House have to say.
§ Sir Bernard Braine (Castle Point)
This is a supremely important debate, and I mean no discourtesy to the hon. Member for Linlithgow (Mr. Dalyell), whose speech I found of intense interest, or to others if I limit my remarks to an aspect of the public interest involved in the disclosure of confidential or secret information which is concerned not with security or the defence of the realm but with the public's own health and safety. I refer specifically, of course, to new clause 8, which refers to a more limited public interest defence than that advanced by hon. Members in the earlier stages of this debate. But it is still one, I submit, of immense importance to all our people.
The clause provides a defence where a disclosure is shown to bein the public interest insofar as it revealed the existence of an imminent and serious threat to public health or safety, provided that effective steps to remove that threat had not been taken.The Committee will note that the clause is limited in two ways. First, the threat must be shown to be imminent and serious, and, second, although it is imminent and serious, no effective steps have been taken to remove it. In short, we are dealing here with a possible serious threat to the health and safety of our fellow citizens, where I would have thought it proper that any Government should act and inform the public.
The threat may be posed in information from domestic sources known to the Government but not to Parliament or the public; or it may derive from information provided under confidential cover by another Government or by an international body. It is my contention that in neither case can there be any justification whatsoever for important public information about health and safety to be kept secret. It is surely in the public interest in a mature democracy such as ours to alert the public to threatening danger.
I am glad to tell the Committee that in tabling this new clause, I and my hon. Friend the Member for Holland with Boston (Sir R. Body) are fully supported by the highly respected British Safety Council and by the Consumers Association, which, I understand, has indicated this to my right hon. Friend the Home Secretary. Indeed, a whole host of other responsible organisations have expressed supporting views.
450 As the Bill stands, information about safety problems could be covered by clause 3(1)(b), which protects information supplied to Her Majesty's Government in confidence by other Governments and by international bodies. As an example, such information might relate to the shipping of highly toxic wastes to or from the United Kingdom, or the spread across frontiers of radiation, acid rain, or pesticides or other chemical products. It was not so very long ago that we were made aware of the distress in Poland, Finland, Sweden and, ultimately, Cumbria as a result of what happened at Chernobyl, as a result of a distinct shortage of information from the Soviet authorities.
Just suppose that the United States Government notified Her Majesty's Government in confidence that a particular model of an airliner was unsafe, and nothing was done about it, or there was serious delay in disclosing the facts, or—if I may borrow the phrase used by the hon. Member for Linlithgow—there was a disposition to be economical with the truth. Under the Bill as it stands, the person who revealed such information would be guilty of an offence.
The case for the new clause can be put quite simply. Where there appears to be an imminent and serious threat to public health and safety, it should not be an offence for anyone possessing that information to disclose it if he believes that it would be in the public interest to do so. I do not think that the words "public interest" appear anywhere in the Bill, so I will define the term. The public interest in this context means, bluntly, avoidance of a situation which, if left unchecked and unheeded, could lead to the death and injury of fellow citizens and the destruction of property, possibly on a very large scale.
I went all the way through the Bill and I could not find the words "public interest" anywhere. In the event of a prosecution, therefore, the jury would not be invited to consider the public interest, still less whether the disclosure did more good than harm to the public. Yet, looking back, I can recall—and I am sure hon. Members in all parts of the House can recall—a number of instances in which disclosure not only would have served the public interest but would have saved lives.
Some hon. Members may recall the tragic consequences of keeping quiet about the risks to which the workers in an asbestos works at Acre Mill near Hebden in Yorkshire were subjected in the 1960s. Employees there knew that white asbestos dust was everywhere in the workplace, in the air, on their clothes and on their skin, and was conveyed to their families when they got home. What they did not know and could not know until long after the plant was closed was what this betokened for their health. Some of them were to die of asbestosis and many were to be gravely injured. The dust on their clothes infected members of their families. The local factories inspectorate knew that asbestos was prevalent there and did nothing.
I will read out a passage from the ombudsman's report. It is to the eternal credit of the hon. Member for Bradford, West (Mr. Madden), who was at the time the hon. Member for Sowerby, that he campaigned in this connection and took the matter to the ombudsman. The ombudsman concluded:For many years neither employers, with whom the principal responsibility lies for arrangements to protect workers from dangers to health and asbestos, nor the Factory Inspectorate, who are charged with responsibility for 451 enforcing the legislative health and safety requirements, were aware of the full extent of the dangers from the dust created by processing asbestos.
Many hon. Members will know Mr. James Tye, the director general of the British Safety Council, an organisation which enjoys a worldwide reputation for its work in industrial safety. He told me only last week that, in this case, he pleaded with the factory inspectorate to make known the result of its inquiries in the public interest. In a letter to me he wrote:I knew about this situation, I repeatedly asked the District Inspector and the Chief Inspector of Factories to disclose from their official records this situation in the public interest and they repeatedly refused on the grounds that Section 2 of the Official Secrets Act didn't allow them to do so. Workers died and worse still their families died as well.
I could cite a number of examples but this one makes my point more eloquently than most.
A second example was the continued failure of the Department of Transport in the 1960s and 1970s to publish the results of its inspection of vehicles, which showed dangerous defects. In his letter, Mr. Tye continued:From 1950 through to 1979 the Ministry of Transport carried out tests of motor cars at the Road Research Laboratory. These tests revealed defects in cars which could cause accident and death, not only to drivers but to pedestrians. In 1979 following a visit to the American Highway Transportation Safety Agency I came back to England and set up a 'hot-line'—in one week we had over a thousand people phone us up and tell us how unsafe their new cars were. All of this information was known to the Department of Transport who would not disclose it to the motorist because it contravened Section 2 of the Official Secrets Act.
I shall describe two other cases. The British Safety Council discovered two years ago that the highly efficient accident prevention advisory unit of the Health and Safety Executive had produced a confidential report on the safety of the London Underground system: it was never published. If the recommendations of that document had been implemented, there seems little doubt that a major disaster would have been averted. As it was, one management witness at the recent inquiry into the King's Cross disaster said thatthe APAU Report had not been discussed at any board meeting.
I shall not dwell on the conclusion reached by the distinguished chairman of the King's Cross inquiry that management was at fault. This is not the occasion to go into detail; however, I will say that the chairman said that cost-cutting came first and safety warnings not even second. If the report had been published, or even leaked, one can say that lives would have been saved.
Some older Members will remember the long battle that I waged for well over a decade against official blindness to the potential and actual dangers to my Canvey Island constituents. For years they were exposed to industrial hazards arising not only from an excessive concentration of liquefied gas, chemical and oil storage, but from management's careless handling at installations listed as major hazards. As a result there were numerous public inquiries and three health and safety reports.
Today, circumstances are very different, thanks to the public campaigns that my constituents and I waged together, and, one must concede, to the efforts of the 452 Health and Safety Executive. Yet I still recall an electrical engineer, employed at one of the installations, who came to tell me at my clinic one Saturday morning that serious risks were being taken with the safety of liquefied gas storage which posed a serious threat to residents beyond the perimeter fence. The risks arose from a defective alarm system fitted to a number of above-ground tanks containing huge quantities of liquefied gas. Half a mile away was a population of about 35,000. Any escape of liquefied gas would have led inevitably to the formation of a gas cloud and, with the prevailing winds blowing over the residential area—as they would in the Thames estuary —and where there are thousands of adventitious sources of ignition, would almost certainly have experienced one of the greatest disasters of all time.
My informant was hounded by his employers for his public-spiritedness and felt unable to attend a public inquiry at which what he had to say would have been devastating. I can scarcely blame him for that.
Eventually, the matter was brought out in public and the necessary remedial measures were taken by the Health and Safety Executive. Disclosure of confidential information in a case of such slackness in safety mangement should have been regarded as a public duty from the start. It was not.
§ Mr. Whitney
Would my right hon. Friend agree that it was the broad scope of section 2 of the Official Secrets Act, which ranges from national security to the industrial problems to which he referred, that caused the problem? Narrowing the scope of the section so that it would affect only those within the "ring fence"—to use the jargon of this debate—would mean that those industrial problems would be debated and judged in a court of law. Does that not dispel my right hon. Friend's concern?
§ Sir Bernard Braine
My hon. Friend has opened up the subject more widely. Since the passing of the Health and Safety at Work etc Act 1974, managements at all industrial plants, especially those listed as high hazards, have had a responsibility not only to their employees but to the population living beyond the perimeter fence. I am talking of a period when that Act was in force. The asbestos example that I described occurred before that Act came into force.
§ Mr. Jeff Rooker (Birmingham, Perry Barr)
It is easy for the right hon. Gentleman to answer his hon. Friend the Member for Wycombe (Mr. Whitney). If the hon. Member for Wycombe is correct, there should not be the slightest difficulty about the Government accepting new clause 8.
§ Sir Bernard Braine
I entirely agree with the hon. Gentleman. I shall make a plea to that effect at the end of my remarks, and I am hopeful about its outcome.
I must issue a warning. If the Government resist the new clause, I must say, with all the force at my command, that they will be asserting that even if cases of malpractice or negligence occurred seriously undermining public health and safety, it would be an offence to reveal them. That runs counter—
§ Sir Bernard Braine
Let me finish my point.
453 At best that runs counter to common sense and at worst is plain wicked. The basis of our parliamentary system is that Ministers are answerable in this place for the powers that they exercise.
The hon. Member for Linlithgow made an apposite remark about parliamentary questions. He said that if hon. Members possessed certain information, their questions could often be effective, but how often do we find that questions are deflected because an hon. Member has slipped up with his information, or it is not complete, or there are other factors to be considered? We know how the system works. Yet Ministers must know that they are answerable to the House for the safety and health of the population.
In my judgment, there can be no justification for anyone to remain silent in circumstances in which he believes, and the information shows plainly, that there is an imminent and serious threat to public health and safety. I hope that I have persuaded my right hon. Friend of the logic and good sense of the new clause.
§ Mr. Dalyell
The right hon. Gentleman referred to parliamentary questions. I do not want to grind a personal axe, but there is a general point to be made—that, given the nature of parliamentary questions, particularly prime ministerial questions, Ministers can simply choose not to answer direct questions and can say something that just puts the shutters down. I intervene because that is relevant to information that comes from the general category of deep throats. Naturally, one must be careful unless one has that information on an attributable rather than an unattributable basis from a man who is careful with civil servants' careers. That is part of the reason for the amendment that we are discussing.
§ Sir Bernard Braine
I do not disagree with what the hon. Gentleman says. If we are questioned in our constituencies about what influence we can bring to bear on Ministers, we say that we can ask them questions and require them to give answers. However, in the present circumstances we get no answers with regard to highly confidential matters. I am going further and saying that, where public health and safety are concerned, Ministers of whatever Government have a duty to be frank and open. If they had been frank and open in case after case that I could cite, tragedy could have been averted.
§ Mr. Raison
I am trying to follow my right hon. Friend's argument. With regard to the cases to which refers, which might be covered by clauses 3 and 5, the Bill states specifically that the disclosure must be damaging. Surely, far from being damaging, the disclosures to which he refers would be beneficial; it would therefore be possible for disclosure to be made.
§ Sir Bernard Braine
Perhaps my right hon. Friend will make that case in greater detail later, as I do not wish to detain the Committee any longer. I believe that I have made my point and I hope that the reasonableness of my case will have persuaded my right hon. Friend to look afresh at the matter. If he can give me an undertaking that he will do so and consider ways and means of accepting the logic and good sense of the new clause, I shall not seek to divide the House.
§ Mr. Gorst
I am worried that my right hon. Friend might have been persuaded by the intervention of our right hon. Friend the Member for Aylesbury (Mr. Raison).
454 Surely he has been ill-advised by our right hon. Friend in that matter. If a balance of harm is done to the public interest and to the Government of the day, my guess is that the Government interest will win and the public interest will lose. It is therefore important to insert the words "public interest", not just the word "harm", in the Bill. There would be two categories of harm, but only the Government harm would be considered. My right hon. Friend should press his new clause and not simply rely on the words in the Bill.
§ Sir Bernard Braine
I am not relying on anything, certainly not on the Bill. I had thought that I had made that absolutely clear. At this stage, I am not even relying on my right hon. Friend. I am relying on the sheer good sense and logic of what I have been saying, which is supported by every safety organisation in the country, and which I guarantee will be supported 100 per cent. by all my constituents and probably by other hon. Members' constituents.
Numerous examples can be given of cases in which failure to disclose information has subsequently led to people losing their lives or suffering ill-health, and that is something—as the greatest man who has ever sat in this House said—up with which I will not put. I am being utterly reasonable here. I want my right hon. Friend to say explicitly that he grasps the point and will do something about it. However, if I fail to obtain a clear assurance which satisfies me, my hon. Friend the Member for Holland with Boston (Sir R. Body) and all hon. Members, we shall press the new clause to a Division.
§ Mr. Hattersley
I wish to speak principally in support of new clause 1 which is grouped with amendment No. 91 and provides an opportunity for the Committee to insert into the Bill a formal and explicit public interest defence.
However, before I do so, I wish to say something to the Home Secretary about the speech of the right lion. Member for Castle Point (Sir B. Braine). In giving many powerful examples, the right hon. Gentleman probably gave two or three examples of the need to speak out and make public certain information, which would be allowed under the Bill. As I know the Home Secretary's techniques, I should tell him that the House will regard his response as inadequate—
§ The Secretary of State for the Home Department (Mr. Douglas Hurd)
The right hon. Gentleman has not heard it yet.
§ Mr. Hattersley
—if he picks simply on those examples in the right hon. Gentleman's speech that are not covered by his proposals. I see from the Home Secretary's smile that that is exactly what he had in mind. Opposition Members know that one case will certainly be covered by some of the examples given by the right hon. Gentlernan; that is the general case in favour of a public interest defence. We hope that the Home Secretary will turn his mind to that general case, which encompasses what he will claim to be safeguards in the Bill and which, in some particulars, would meet his right hon. Friend's point. but would not do so in others.
The new clause would make it possible for a defendant prosecuted under the legislation to argue that the disclosure which was the basis of the charge was justified in the public interest. It would be possible to argue that a 455 disclosure, although unauthorised by Government, was positively desirable in the national interest. If the new clause is incorporated in the Bill, the Government will forfeit their right to be the sole arbiter of where, in these matters, the public interest lies.
The right hon. Member for Castle Point asked a rhetorical question—whether the words "public interest" appear in the Bill. They do not, but it is the Home Secretary's habit to argue from time to time that something which amounts to an observance of and a respect for the national interest appears in the Bill and makes the new clause and amendment No. 91 unnecessary. The Home Office press release of 11 November suggested that a public interest defence already appears in the Bill. If the Home Secretary seeks to justify that press release, he will no doubt do so in the way that I shall describe, having asserted that the suggestion that public interest is recognised, let alone acknowledged, is simply untrue. We established in our debate last week that, with regard to clause 1, the prosecution is not required to demonstrate anything except the fact of disclosure.
The rest of the Bill is certainly less absolute, but it does not contain the protections that were suggested, at least by implication, in the intervention of the hon. Member for Wycombe (Mr. Whitney) when he interrupted his right hon. Friend the Member for Castle Point. In lieu of a public interest defence, as the Home Secretary will describe it, the Bill includes what are described as "specific tests of harm." But if they are examined, as they must be, in comparison with a proper public interest defence, they are seen to be nothing like an adequate substitute, particularly since, looking at them closely, we realise—and we must put the point even before we debate the so-called tests of harm later in our consideration—that the so-called tests of harm are not precise, are not objective and therefore are not reasonable.
I offer two examples to justify the claim that the tests of harm cannot compensate for the absence of a public interest defence. If a disclosure prejudices the capabilities of the armed forces in part or in whole, or is likely to do so, an offence is committed. The width of that definition makes it virtually worthless as a protection for anyone who reveals anything about the armed forces, and makes it wholly different in kind from a public interest defence. It covers all that the armed forces are doing, anywhere and at any time.
Obviously—this is the sort of example that defenders of this as an alternative to a public interest defence will bring forward—neither Labour nor Conservative Members who oppose the Bill would attempt to justify revealing, say, the battle plans of the British Army of the Rhine, thus impairing the armed forces' ability to defend this country.
Consider another example. Let us assume that a civil servant discovers corruption at an ordnance depot and that the scandal is suppressed by authority. The revelation of that scandal might for a week or two prevent that depot from operating with its normal day-to-day smoothness, and because of that would prejudice the operations of the Army in that small particular.
Harm will in consequence be done. A prosecution can in consequence follow, and on the evidence of the Bill, since harm was done, the prosecution would succeed. But 456 surely on balance it would be in the public interest for the revelation to be made—although since there is no public interest clause in the Bill, that revelation would be illegal.
§ Mr. Heffer
If the Rhine battle plans were purely defensive, in line with NATO policy, I would agree with my right hon. Friend's comments. But if the plans were not purely defensive and a small group of people in the Army got control of the Army and decided to extend into a positive shooting war without anybody else's agreement, would my right hon. Friend not think it right that that should be revealed to the nation?
§ Mr. Hattersley
While I do not want to divide the opposition to the Bill, were a public interest defence included in it and were someone to reveal the battle plans of BAOR, offensive or defensive, and were I to sit on the jury which tested the propriety of that, I would come down on the side of it not being in the public interest that those plans should be revealed. That is a point on which my right hon. Friend and I may disagree, but let us concentrate for the sake of this argument on those areas where we are in unanimity about the desirabilitiy of allowing to be made public that information which can be made public without damage, by any criterion, to the national interest.
§ Mr. Whitney
In considering the right hon. Gentleman's example, it is important to get as near to reality as possible and away from hypothesis. There is a workshop or ordnance depot where corruption has been discovered. Is he seriously suggesting that he believes it possible that, if the discoverer of that information so persisted right the way up through the chain of command of the Army and Civil Service, to the permanent head of the Ministry of Defence and on to the head of the Civil Service, the whole of that web would participate in covering up the corruption?
§ Mr. Hattersley
I have noticed from the repeated interventions in debates by the hon. Member for Wycombe (Mr. Whitney)—no doubt the product of his years flitting from the Army to the Civil Service and on to Government—his extraordinary deferences to authority. He always believes that the next man up will do the right thing. That in my experience, and I suspect his, is not how life turns out in practice.
We must consider in discussing the Bill—for it is protecting the public interest—those occasions when the next man up does not or might not do the right thing. The Bill as drafted says that when the next man up does not do the right thing, it becomes a criminal offence to say so. I hope that the hon. Member for Wycombe will try to concentrate on that concept rather than reiterate his pathetic belief that authority is always right.
§ Mr. Whitney
I hope that the right hon. Gentleman will understand—I appreciate the limitations he may have in comprehending this—that we are not talking about incompetence. He was talking about corruption and was inviting the Committee to suggest that the whole of the structure that he posited would condone corruption. I think I see him sniggering. I do not subscribe to that view of the Civil Service or of the armed services of this country.
§ Mr. Hattersley
The hon. Gentleman is entitled to that grand old traditional view of life and society and will no doubt vote that way when the Committee divides on this issue.
§ Mr. Rupert Allason (Torbay)
An example that springs to mind quickly of somebody who would suffer badly under the Bill is Jack Kane, who made allegations relating to corruption and the leakage of secret information from a GCHQ establishment in Hong Kong. He pursued that case, and as far as I can tell—having followed the case as best I can, bearing in mind that there is an injunction on it—there have not been any criminal convictions, except that Jack Kane has had to seek employment as a milkman.
§ Mr. Hattersley
I understand—the hon. Gentleman will correct me if I am wrong—that if Mr. Kane had, in the circumstances he described, revealed what he regarded as corruption and the attitude of authority, under the Bill as drafted he would be prosecuted and convicted. So I repeat that the width of the definitions and the limitation of the harm test mean that they are in no way an appropriate alternative to the public interest defence.
I will give a second example. The Home Secretary will no doubt say that when we talk about information regarding international matters that can or cannot be revealed, the limitation on revelations and prosecutions for unauthorised revelations will concern only matters which jeopardise the interests of the United Kingdom abroad.
The idea that that might form the basis of a defence and provide some sort of protection was dealt with by the BBC, which wryly said that that definition could not be used as useful guide to journalists. It will, no doubt, be used as a useful weapon for politicians who wish to determine what journalists write and say, but that is different from a public interest defence.
There have been—no doubt we shall hear about this again from the Home Secretary—arguments as to whether a public interest defence could reasonably become a feature of English law. On the evidence, it is already in some respects a feature of English law. There is no doubt that the aquittal of Mr. Clive Ponting amounted to the jury's judgment that he acted in the public interest by revealing the truth, when the Government wanted to deceive the British people.
I was not sure whether the quotation given by the hon. Member for Wycombe was intended to incriminate my hon. Friend the Member for Linlithgow (Mr. Dalyell) or incriminate Mr. Ponting. The question is not whether we like or admire Mr. Ponting or whether he is the sort of man with whom we would want to be stationed in China. The question is whether the principle that underlined his prosecution and the removal of the principle on which he was acquitted is a principle that we wish to uphold in the Committee today.
Not only the Ponting case gives one reason to believe that, at least to some degree, there is an element of public interest defence. The judgments of the Law Lords in "Spycatcher" made it clear that at any rate some of their conclusions were based on an assessment of where the public interest lay. Lord Keith of Kinkel, having referred to the public interest implications of the Crossman diaries as a precedent, turned to the proposed injunctions against The Guardian and The Observer and said:I am of the opinion that the reports and comments proposed. . .would not be harmful to the public interest.Lord Brightman judged that the articles—I quote again exactly from the judgment—were not in fact damaging to the public interest and are not therefore a proper foundation for any case by the Crown against the newspapers.
§ Mr. David Winnick (Walsall, North)
Surely one other case that comes to mind is that of Cathy Massiter, who, as I think my right hon. Friend would agree, is a woman of the utmost integrity. She performed a public service by disclosing what went on in the security services—the abuses that seemed to be connected with the right hon. Member for Henley (Mr. Heseltine) when he was Secretary of State for Defence. Surely that lady, who was not prosecuted—and rightly so, of course—would have absolutely no defence under clause 1.
§ Mr. Hattersley
If there had been a prosecution in that case, if I had been on the jury, and if the public interest defence had been invoked, I would have wished to declare Miss Massiter wholly innocent, in that she was acting in the public interest. But whether the Home Secretary accepts my hon. Friend's judgment, and mine, that in a number of matters affecting security the public interest criterion is already partly present, he has to accept that it exists in other English laws as they now stand. Under section 4(1) of the Obscene Publications Act, conviction is conditional on the public interest being served, for it is possible for a defendant to argue that publication is "justified as being in the public good".
The significant—I almost said "sinister", but it would be too open, too overt, to admit that it is sinister—damaging and dangerous thing about this Bill is that if it is passed in its present form it will extinguish many of the elements of the public interest defence that now exist. That fact alone—the present elements are to be distinguished—disqualifies it from being described, as the Home Secretary so often chooses to describe it, as a great liberalising measure.
I repeat—for it is worth repeating—that in this particular the Bill removes a defence which, at least in part, was available under, I think, part of section 2 of the 1911 Act, and which was successfully employed by Mr. Clive Ponting.
§ Mr. Hattersley
The Home Secretary says, "Oh." I want to develop the point of the Pouting case and the Ponting judgment. I agree with my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) that this is only illustrative, that it is not simply about Mr. Pouting, although what happened to Mr. Ponting demonstrates what the law now says and how the law will soon be changed—in my view, for the worse.
If this Bill becomes law, it will not be possible, as it was possible for Mr. Ponting, to argue that, while the rule of confidentiality had certainly been broken, the public interest was served. Nor will it be possible for a defendant to argue that, while some marginal harm might have been done to the national interest, the good that disclosure did more than outweighed the damage.
The present Act—the 1911 Act—is explicit. My hon. Friend quoted it, but it is worth quoting again.
That Act says that it is no offence to make a disclosure to someoneto whom it is in the interests of the state" the informant'duty to communicate the material.The Home Secretary always says that that provision was not intended to be interpreted as the Ponting jury chose to 459 interpret it, but, with great respect to the Home Secretary, I must say that in this matter his opinion is of no consequence whatsoever.
The fact is that the section was so interpreted, and there are two views we can take of that interpretation. The first is that it was a point that was so good in law that at least the Government were not able to appeal against it. The second is that, if the area of law is at least grey, as the Home Secretary suggests, a British jury's wisdom and instinct for justice and common sense led it to choose to make a public interest defence relevant to that case. Either way, the Home Secretary is overturning and reversing processes that are better than those that he chooses to put in their place.
§ Dr. David Owen (Plymouth, Devonport)
Is not the fascinating thing the fact that the Government did not take that case to appeal, because they were afraid of the judgment? If an appeal had upheld the jury's judgment, this legislation would really have been impossible to produce, so the Government decided to change the law so as to prevent that defence from ever being used again.
§ Mr. Hattersley
I agree entirely. I believe that, at the time, there was an upsurge of the opinion that telling the truth in order to contradict the misinformation that is spread by the Government is not something for which a man ought to be penalised and sent to prison. The upsurge of feeling was such that the Government could not have maintained their case successfully in any court.
The result is that there is a period of cooling off in the hope that that feeling of outrage will subside, and then the Government bring in a Bill which, in this particular, is far more repressive than that which it is intended to replace.
The fact is that, whatever the Home Secretary may say about the present law, the jurors in Mr. Ponting's trial, balancing Mr. Ponting's unauthorised revelation of the truth against the Government's official dissemination of inaccuracies, judged that, among the persons to whom, in the words of the Bill, it was in the interests of the state for the truth to be revealed were the citizens of the state, the people themselves—that it was in the interests of the state for the people to know what was happening.
The public interest defence is essentially based on that contention—the contention that it is sometimes in the interest of the state as a whole for the people to be told the truth when the Government want to suppress the truth. That is a principle that ought to be respected in every democracy, but if this Bill goes through unamended by any of the group of amendments and new clauses that we now debate, a defence based upon that essential canon of democracy will be wholly obliterated.
I know that I encourage some hon. Members opposite to support the Bill when I say that, under the present proposals, Mr. Clive Ponting, who was acquitted under the 1911 Act, would be convicted, but I want to repeat that, whatever else that fact proves, it certainly demonstrates that the Home Secretary's contention that this Bill is in almost every particular more liberal than the one it seeks to replace does not stand up to a moment's examination.
Before I seek to justify the concept of the public interest, I want to make clear the limited nature of the new clause that we now propose. Its wording is so intended that 460 it does not provide a defence for civil servants who, acting out of political prejudice, personal resentment, pique, or spite, reveal what should be kept secret. The public interest defence will be possible only in the limited circumstances that the clause specifies—where the man or woman charged with the offence is able to demonstrate that he or she had reasonable cause to believe that the facts revealed indicated the existence of crime, fraud, abuse of authority, neglect in the performance of official duty, or other misconduct.
Because it is so limited, what the Committee has to decide, when we come to vote tonight, is whether a public servant who believes that one of those situations exists —crime, fraud, the abuse of authority, neglect or misconduct—should be sent to prison for attempting to end the abuse by making the abuse public, even if he or she has attempted to find redress under the internal mechanisms and found that, under those mechanisms, redress is impossible.
Under the Bill, unless it is amended, in the sort of circumstances that I have described, the wrongdoer may well escape, while the public servant who revealed the wrongdoing is automatically prosecuted, convicted and sent to prison.
§ Mr. Tony Baldry (Banbury)
I have been listening carefully to what the right hon. Gentleman has had to say. Will the test that juries will have to apply under his amendment be subjective or objective?
§ Mr. Hattersley
It will be a test according to the criteria I have just described—namely, that the man or woman had reasonable cause to believe that the conditions that I have outlined were operating. Of course, that means that there may be occasions when the jury says that the man thought that a misdemeanour was being perpetrated or that the woman believed that misconduct was taking place, but that that was an unreasonable conclusion for the man or woman to come to, that it was not based on sufficient evidence. In that case, the man or woman would be convicted rather than acquitted.
There may be some, therefore, who will feel that this is an over-exacting test of the public interest, but we have tried to put it in minimal terms in order that anyone who has the slightest instinct and feeling for the proper public interest of this country will feel able to vote for the new clause.
I hope that some hon. Members will feel able to vote for the amendment, because the implication in this amendment and in the new clause carries an idea which is essential to democracy in this country. Without a public interest clause in the Bill, what is harmful to the national interest is determined by the Government. They become the arbiters of the national good and, at least in their own minds, synonymous with the national good and the public interest. There are occasions in any democracy when on an objective, unbiased judgment, a Government act against the national interest. To allow the Government to decide what is in the national interest allows the Government to act lawfully, but tyrannically.
Lord Hailsham constantly warned us about the dangers of Britain becoming an elective dictatorship, before he joined one by becoming a member of the Cabinet in 1979. Lord Hailsham and the Secretary of State must understand that to announce, as the Bill announces, that the Government will decide within the vaguest of 461 parameters what may or may not be published, without the benefit of a public interest defence, is a perfect example of elective dictatorship in operation. The Government claim to act for the state, of the state and to be the state and they extinguish one of the people's basic rights, the right to know the things which can be published without causing damage to the community as a whole.
We argue that the absence of a public interest defence means that information will be suppressed which, were it made public, would be to the benefit of society as a whole. Not only ought that information to be available, but it would benefit society through its availability.
Reasonable men and women will agree that, when the interests, and particularly the security, of our society are threatened, it is right and necessary to proscribe and prohibit the publication of official information. However, the public interest defence is, by definition, about information which, if published, certainly does not damage the national interest and may be to its benefit.
The public interest defence also insists that a court of law—a jury—should decide where the public interest lies. The Government are incapable of understanding that they cannot be the arbiters in those matters. That is true—I repeat this because it is worth repeating—because the Government are not the whole state and should not believe that they are or act as if they are. It is also true because, very often, information is suppressed which need not be suppressed and is kept in secret by the Government, not to keep it from unfriendly powers, but to keep it from the people of this country.
The crucial test of an Official Secrets Bill is whether it adequately distinguishes between information that it is necessary to keep secret in the national interest, and information that is either capable of publication or which it would be positively in the national interest to disclose. In the absence of a public interest defence, this Bill fails that test.
The Bill provides—not absolutely, but far more widely than is acceptable in a democracy—the right of the Government to decide what people may know and what they may be told. Throughout the lifetime of this Government, we have seen that their obsession with secrecy is not so much about protecting information necessary for our security, but suppressing information which is embarrassing to the Government. Time after time, information well known to other Governments, friendly and unfriendly, and freely available in other countries has been proscribed or pursued through the courts. Without a public interest defence, the Bill allows the Government to suppress information which the people of this country have the right to know. That is why I will happily vote for the amendment.
§ Mr. Hurd
I thought that it might be helpful to the Committee if I intervened at this early stage. If it is convenient to the Committee, I will gladly speak again if necessary. I thought that it might be sensible to discuss the amendments from the Government's point of view in the wider compass of the Bill and with regard to our general approach to protecting the national interest.
I agree with all right hon. and hon. Members who have spoken that the question whether there should be some form of over-arching public interest exemption from the offences in the Bill goes to the heart of the measure. In my mind, it raises the question whether the criminal law can have any effective role in relation to official secrets. I want 462to consider what has been said and to consider the amendments, not in detail at this stage, but to see how they fit into the Bill's structure and the approach that we have tried to adopt to deal with section 2 of the Official Secrets Act 1911.
Once again, I do not recognise the portrait of the Bill that the right hon. Member for Birmingham, Spark brook (Mr. Hattersley) painted. I do not expect at this stage to persuade all members of the Committee, but I am sure that hon. Members are open to argument about these matters and to our request that they consider exactly what the Bill states.
As the right hon. Member for Sparkbrook anticipated, I disagree with the argument that there is already, partially, some kind of over-arching public interest defence in the existing criminal law. A number of defendants have tried to claim that there is a limited form of such a defence, but the right hon. Gentleman knows that he cannot cite cases in which the courts have accepted that argument. Certainly, juries have acquitted in some cases—and a feature that is common to the existing law and to the Bill is that, at the end of the day, juries must decide and they do not give reasons for their decisions. Nevertheless, it is a flimsy argument to erect a great construction on the basis of individual cases.
§ Mr. Hurd
I want to make progress as I have a connected point to make, but I will give way later.
The right hon. Member far Sparkbrook quoted the Obscene Publications Act 1959. I was surprised that he did that as I thought that all hon. Members, lawyers and non-lawyers, would agree that that Act is thoroughly unsatisfactory.
§ Mr. Hurd
We have had difficulty from time to time in deciding how to change the Obscene Publications Act 1959, but I cannot think that the isolated example that the right hon. Gentleman gave is a good example to cite in this context.
§ Mr. Hattersley
The Home Secretary and I may argue about whether it is a good example, but I hope that we shall not argue about whether it is an example. The right hon. Gentleman contends that the public interest defence does not exist in criminal law. I have given an example in which it exists and I do not understand how he can continue to claim that it does not exist in that area.
§ Mr. Hurd
I am sorry, but it does not exist in the official secrets legislation. That is my point. The right hon. Gentleman cannot sustain his flimsy construction in that area. He has found, quite accurately, an example where it exists in another piece of the criminal law—that is perfectly true—but the force of his argument is spoilt by the fact that everyone considers his example to be a thoroughly unsatisfactory statute.
§ Mr. Aitken
How can my right hon. Friend possibly argue that section 2(1)(a) of the Official Secrets Act 1911 does not exist and has not been used as a form of public interest defence? Not only has it almost certainly been used 463 as an argument by those who have not been prosecuted, such as the civil servants who briefed Sir Winston Churchill before the war, but it has been used in specific cases. I naturally remember the case in which I was involved. In that a great deal of the Old Bailey's time was taken up with submissions, which were accepted, to the effect that the words in section 2in the interests of the stateformed the basis upon which a jury could acquit. So there is clearly a public interest defence and it just does not add up for the Home Scretary to deny its existence.
§ Mr. Spearing
On a point of order, Mr. Deputy Speaker. Is it not the custom of the House that in Committee right hon. and hon Members, whatever their status or experience, give way to reasonable interventions, particularly from those Members who have served the Crown on matters relating to their speeches and to the law?
§ Mr. Hurd
I have already given way several times. I am perfectly prepared to give way to the right hon. and learned Member for Warley, West (Mr. Archer). Then, with the permission of the Committee, I should like to continue what I consider is a connected argument, but I shall give way again before I sit down.
§ Mr. Archer
Will the right hon. Gentleman explain how the argument for the defence in the Ponting case—that the disclosure was to a person to whom it was in the public interest to disclose it—could be advanced in a prosecution under the Bill?
§ Mr. Hurd
I am not saying that. I am making the point that neither the right hon. Member for Sparkbrook, nor the right hon. and learned Gentleman, nor my hon. Friend the Member for Thanet, South (Mr. Aitken) has been able to show where the courts have established a public interest defence under the existing law. The argument with which my hon. Friend concluded is that there have been acquittals—a fact that I acknowledged five minutes ago. Juries do not give reasons—and the one thing common to the Bill and the existing Act is that ultimately the jury takes a decision without giving reasons.
I hold to the view that it is perfectly reasonable to debate the proposition that we should provide a public interest defence. The right hon. Member for Sparkbrook spent most of his speech on that subject. However, it is not possible to argue, as the amendments do, that we should retain something which exists in the present law under criminal legislation.
§ Mr. Dalyell
On a point of order, Mr. Deputy Speaker. As the mover of the amendment, may I ask you whether at this stage, when there is a clash of opinion with QCs and others taking very different views, it would be reasonable to ask for the presence of the Attorney-General or the Solicitor-General to clear up these matters?
§ Mr. Dalyell
My right hon. Friend says that they should have been here. I do not wish to be offensive to the Home Secretary, but as the mover of the amendment and a layman I think we are entitled to have a Law Officer present.
Mr. Deputy Speaker
The hon. Gentleman knows that I do not have the authority to do what he asks. It might make sense for the Secretary of State to be allowed to reply to the debate so far. In Committee there is no requirement for any hon. or right hon. Member to seek the approval of the Committee to speak on a second occasion.
§ Mr. Hurd
We are covering ground that we have covered before. I want to get to the heart of the matter. Regardless of whether there has been a public interest defence, on which I disagree with some right hon. and hon. Members and I think that I am right, we now reach the question whether there should be one in the future.
I hope that the Committee will agree that there is no need to create a public interest defence where there can be no prosecution. I listened with very great care to the speech of my right hon. Friend the Member for Castle Point (Sir B. Braine), the Father of the House, who has since had to leave the Chamber. As he said, under the 1911 Act there could be a prosecution if there was any unauthorised disclosure of official documents on matters such as public health or aircraft safety. My right hon. Friend gave examples from the factories inspectorate, the Department of Transport and from his own continuous and eloquent efforts to protect his constituency from certain environmental evils. I am not so familiar with those cases as he is, and I do not know what reasons officials or official organisations had for withholding information on those various occasions, but having listened carefully I can assure my right hon. Friend that if the Bill is passed those officials will not be able to say to him what they said on those occasions—that they could not give him the information because it was against the criminal law.
§ Mr. Hattersley
I realise that the Home Secretary is dealing with the speech of the right hon. Member for Castle Point (Sir B. Braine) at some length, so I wish to ask him a question that relates to the part of the right hon. Gentleman's speech regarding safety, the possible outbreak of disease, damage or contagion. Would the Bill catch the Windscale cover-up of 1957 when the Cabinet took a conscious decision not to allow people to know the damage that was caused by the leak at Windscale?
§ Mr. Hurd
I do not know the background to the Windscale case or whether it conceivably could have come under any of the tests of harm in the Bill. However, I listened carefully to my right hon. Friend's examples and I cannot think that they would. Indeed, my right hon. Friend's speech drew from the right hon. Member for Sparkbrook the first acknowledgment in many hours of debate that the Bill, as compared with the Act, contains important safeguards. That was a very important and interesting admission. I agree with my right hon. Friend the Member for Castle Point that it is not common sense that, whatever the arguments about the merits of particular disclosures, they should not be conducted on the basis of the criminal law. There may be wrinkles that I have not grasped, but I cannot see how his examples could 465 be within the scope of the present Bill, although they certainly came within the scope of section 2 of the Act. His speech was a measure of the substantial changes between the existing Act and the Bill which have been acknowledged for the first time by the right hon. Member for Sparkbrook.
§ Mr. Richard Shepherd
I shall not contend the instances that my right hon. Friend recalls. However, my right hon. Friend the Member for Castle Point (Sir B. Braine) gave other instances such as information originating from foreign Governments which might affect matters such as salmonella, poison or health risks, and information on the safety of aircraft engines. Those matters will still be covered by the criminal law with a very trivial defence barrier.
§ Mr. Hurd
I will not swap epithets with my hon. Friend—he knows better than that. My right hon. Friend the Member for Castle Point dealt with that point, but it was not the main thrust of his argument. He said that he had been led to believe that it was possible that issues which might otherwise have been removed from the criminal law under the Bill, although they exist in the Act, might be retained by the protection which the Bill gives to confidential information obtained from other countries or international organisations. It has been argued that it would be an offence to disclose any EC draft directive or any confidential document on any subject. I understand why that misunderstanding may have occurred to my right hon. Friend the Member for Castle Point and the safety organisations that he cited.
It is perfectly true that that would have been the case under the White Paper. One of the criticisms made in the House when we debated the White Paper was that it went far too wide. Sir Leon Brittan made that point at the time, and we listened to that criticism. Therefore, the position is different in the Bill. Under the Bill, no one who discloses such information—information derived from a confidential draft EC document on salmonella, for example—can be convicted under the Bill unless his disclosure jeopardises our interests abroad. seriously obstructs the promotion or protection of those interests, or endangers the safety of our citizens abroad, or is likely to have any of those effects and he had good reason to know that it would. That is quite a different kettle of fish and it would be a considerable contortion to imagine circumstances in which the Bill as opposed to the White Paper could meet any of the cases that my right hon. Friend the Member for Castle Point put forward.
I entirely understand why my right hon. Friend put his case so strongly. If we had rested on the White Paper, although the great majority of the cases that he mentioned would be outside the Bill and would be examples of information liberated from the criminal law under the Bill, there might have been an argument about information derived from abroad. However, the change between the White Paper and the Bill deals with that point and I hope that on reflection my right hon. Friend the Member for Castle Point and my hon. Friend the Member for Holland with Boston (Sir R. Body) will regard it as reasonable.
§ Mr. Buchan
The other aspect in clause 2 for which, again, there is an absolute case relates to defence. I live near the Clyde estuary, surrounded by nuclear weapons, nuclear bases and nuclear installations. If there were a leakage, damage would be done to the health of the local 466 community, but disclosure could damage our prestige, standing or relationship with allies. Would the interest of the state mean the interest of the people in the area and therefore mean that the information should be disclosed, as was argued in regard to Windscale, or would the Bill prevent that?
§ 6 pm
§ Mr. Gorst
My right hon. Friend is exchanging the disincentive in section 2 of the Act for a further disincentive. No one will feel free to make a disclosure with the sword of Damocles described as "harm" hanging over his head. The prosecution will have to prove that harm took place—and unless the person is proved to have been justified in making a disclosure in the public interest he will go down for years.
§ Mr. Hurd
My hon. Friend has not grasped the narrow nature of the Bill. In the type of case with which my hon. Friend sympathetically helped my right hon. Friend the Member for Castle Point (Sir B. Braine), there is no question of having to prove harm. Prosecutions cannot be brought on matters relating to public health, so there is no need for a public interest defence.
§ Mr. Shepherd
My right hon. Friend asserted that under this category information coming from the EEC would not harm the interests of the United Kingdom abroad, and he emphasised "abroad". One of the issues raised in previous debates was that the test of damaging the interests of the United Kingdom abroad is satisfied by the fact that a document is confidential. That is what has caused the difficulty and why we say that it is within the scope of the criminal law.
§ Mr. Hurd
The test is of jeopardising our interests abroad. It is extremely unlikely that the examples given by my right hon. Friend the Member for Castle Point, the Father of the House, will be brought within the scope of the Bill.
I shall deal with the parts of the Bill that are relevant to the arguments deployed by hon. Members about public health and safety. With two exceptions, it will be for the jury to decide whether a disclosure meets the terms of the harm described in the Bill. Most people expected ministerial certificates to be introduced. All issues are to be decided by the jury because it is not the Government but the jury who are the arbiters on the basis of the legislation that Parliament passes. That is why I do not recognise the portrait painted by the right hon. Member for 467 Sparkbrook. I understand why those who, like the right hon. Member for Sparkbrook, thought in terms of ministerial certificates—throughout their working lives their propositions were based on ministerial certificates—have difficulty in accepting the full implications of the change that we are proposing.
Two sets of circumstances are defined in the Bill in which we believe that the disclosure of official information without authority must inevitably cause harm. The Committee has already discussed the first—clause 1—in which a former member of the security and intelligence services or a notified person breaks the secrecy by which the services must operate. The second relates to the disclosure of information about or arising from the use of the special investigation powers under statutory warrant from the Secretary of State. In all the other more substantial information covered by the Bill, including information relating to security and intelligence that is not covered by the special offence that I have just mentioned, it will be for the jury to decide whether a disclosure caused or was likely to cause the form of serious harm to the public that the Bill specifies. I cannot accept that any of the harm tests are minor, trivial or unimportant. Hon. Members will want to discuss the wording of the relevant test, but no criticism of it can be a sufficient argument for setting aside or overlaying those tests with a different public interest defence.
In different ways, the amendments propose an over-arching, public interest defence. It is worth mentioning that there will be no over-arching, public interest prosecution. We have deliberately narrowed the scope of possible prosecution by providing, in most cases, the specific harm test. At present, the prosecution need not prove harm, but in future it will not be possible for it to argue against a civil servant who reveals a defence secret that the disclosure damaged some vague public interest. The prosecution will have to show that the defendant knowingly caused or was likely to cause the harm defined by Parliament in the Bill.
In the light of the relevant harm tests, the defendant is free to introduce such evidence as he chooses to support his argument that the disclosure was not likely to cause that harm or that he had no reasonable cause to know that it would. He can argue that the prosecution's application of the test of harm is mistaken and that on a proper application of the test his disclosure was not likely, for example, to damage the capability of the armed forces. He may say, on the contrary, that as he was revealing deficiencies his disclosure could not possibly have harmed the forces and could only have enhanced their capability. Within the test of harm, the jury will have to decide that argument.
The Bill does not allow the defendant to argue that, although his disclosure has caused the specified harm, and he knew that it would, the court should weigh that against some other consideration. Critics argue that that is a restriction on the defence, but it is also—I am sure that this will be acknowledged by the right hon. and learned Member for Warley, West, who is a former Solicitor-General—a restriction on the prosecution in the sense that I have just described. The argument will be whether the test of harm has been satisfied.
§ Mr. Hattersley
The Home Secretary seems to be arguing that there is a concept of balance of harm. He said that it would be open to argument that, although some harm had been done, even more good had been done— [Interruption.] The Home Secretary said or implied that, and I am asking for clarification. Am I right in thinking that, if a little harm is done, it is sufficient to convict even though the defence may argue that much benefit has been derived at the same time?
§ Mr. Hurd
If the prosecution were based on the test specified for defence information, the defence would simply argue that harm had not been done or that capability had not been damaged. The defence would adduce arguments to prove its case, but neither the prosecution nor the defence could import vague arguments derived from other matters. I hope that that is clear.
§ Mr. Buchan
If the harm relates to the defence of the country, but the good relates to the interests of people in the area, it would be sufficient to prove that harm had been done—not to make a balance—for the person to be found guilty.
§ Mr. Hurd
The hon. Gentleman is right, and on that he will base his criticisms of the Bill. In the case that he mentioned, the test would be whether harm had been done to the defence forces.
It has been suggested—this is the crux of the matter—that there are circumstances in which it is necessary for a person seriously to harm this country's vital interests to reveal a matter of public concern. The hon. Member for Paisley, South (Mr. Buchan) sought to argue that from his example. We do not accept that argument because we believe that there are ample ways of pursuing grievances, worries and anxieties up to the highest level if one is a public servant, although the methods vary according to the Department concerned.
The case that has caused the greatest discussion in Committee is the absolute offence. I remind the House that about 15 months ago a staff counsellor was appointed to whom members and former members of the intelligence and security services could take anxieties about their work. He has unrestricted access to my right hon. Friend the Prime Minister and to myself to report on any matter raised with him.
§ Mr. Winnick
Let us consider again the case of Cathy Massiter. Had there been a staff counsellor then—I know that he was appointed afterwards—and she had not been satisfied that her complaint was being dealt with properly, what could she have done if what she saw as an abuse by the security services continued? Is he telling us that in those circumstances someone like that or anyone else in future should come to the conclusion that there is no overriding interest for the country above that of the Government of the day?
§ Mr. Hurd
There have been two recent changes since that case—I have deliberately not referred to past cases. I have just mentioned the first and the other is the procedure for warrants which took up considerable time during the debate on the Security Services Bill. The hon. Gentleman knows the position. One reform already introduced is that warrants must be authorised personally by the Secretary of State with the commissioner looking over his shoulder and, of course, people with grievances will have access to 469 the tribunal. We propose to extend that principle to any interference with property that the Security Service may undertake.
§ Mr. Hurd
So there have been two substantial changes in recent years and, between them, they provide a remedy for iniquity—to use the legal jargon for the point that the hon. Member for Walsall, North (Mr. Winnick) made. The remedy that a member or a former member of the security or intelligence services should seek should be other than breaking the duty of confidentiality.
§ Mr. Hugh Dykes (Harrow, East)
My right hon. Friend has commended to us the enhancement of the internal Civil Service rectification procedures and has said that the internal situation in all Departments will be much improved. Does that not mean that he should have greater assurance and self-confidence and accept the strong arguments for the public interest defence? The senior civil servants to whom aggrieved civil servants take complaints about serious misdemeanour will know of the solemn and serious procedures and will know that, in the background, there is the possibility of the public interest defence being invoked if an unallowable disclosure takes place. On the other hand, the aggrieved civil servant who is anxious to get off his chest the fact that gross and improper misdemeanours and wrongdoings are occurring in his Department will know that the final, solemn and awesome step, which he does not want to entertain as a possibility, is that public interest defence which he knows that he has the right to invoke in the final analysis. Surely my right hon. Friend should have more confidence in the internal procedures and should see the merits and weight of having those two considerations proceeding jointly, rather than one cancelling out the other.
§ Mr. Hurd
I admire my hon. Friend's great ingenuity in making that point and I shall try to deal with it. I was trying to put the argument that, although it would have been possible, a long time ago, to argue that the people referred to in clause 1 had no remedy except to go to the press, that argument no longer exists. In dealing with the point made by my hon. Friend the Member for Harrow, East (Mr. Dykes) one must look at the amendments, one of which he believes I should accept.
§ Mr. Richard Shepherd
I hope that my right hon. Friend saw the letter in The Times a week ago from Lord Croham, Sir Douglas Wass, Sir Patrick Nairne and others. They envisaged that internal procedures cannot always be relied upon and that, therefore, some other mechanism is needed. The burden of my right hon. Friend's argument is that internal procedures can be relied upon absolutely, which conflicts with the views of those who have administered the Civil Service for some years and who have some insight.
§ Mr. Hurd
The letter did not argue for my hon. Friend's proposition, but for further strengthening of internal procedures. The letter-writers were a little out of date because the procedures have been updated. There is now access to the head of the Civil Service and not just to the head of Department, but that is a minor change and we do not rest our case on that. The letter from those 470 distinguished former public servants is an argument not for amendment, but for a further strengthening of internal remedies.
It is useful that our critics have tabled this group of amendments because we then have something to shoot at:. Some of the amendments, such as amendment No. 91, would justify disclosure on grounds, such as the suspicion of misconduct, so wide that they would give the wrong message to public servants and could lead to a dangerous weakening of the public service.
§ Mr. Hurd
I shall just illustrate my point. New clause 1 and some of the other amendments seek to provide an absolute defence for anyone who can show reasonable cause to believe that the information he disclosed suggested the existence of misconduct, however minor. What is misconduct? Does it mean being slow in answering a letter or taking a few days off when one should not? We have had to face such criticisms. It is right to say that the amendments go wide. What is meant byneglect in the performance of official duty"?That could cover comparatively minor matters. Amendment No. 91 provides that indication of such behaviour would be sufficient to prevent prosecution for an unauthorised disclosure, even if it caused great harm.
I shall now deal with the point raised by the right hon. Member for Sparkbrook. He implied that it would not matter if the plans of the British Army of the Rhine were revealed so long as one indicated the existence of neglect in the performance of public duty or other misconduct.
§ Mr. Hurd
I am coming to the end of my remarks.
Far from asserting the Government's role as an arbiter, which is the gravamen of the charge made by the hon. Member for Linlithgow and the right hon. Member for Sparkbrook, the Bill, in comparison with section 2 of the Official Secrets Act 1911, is shifting the balance in favour of the individual, whether a civil servant or journalist, by withdrawing the criminal law wholly from the bulk of official information and providing that the specific harm test will not be laid down by Government but agreed by Parliament. For most of the remainder, the prosecution will have to pass the specific harm test, and the Bill provides that nobody can be convicted if he had no reason to know that his disclosure would be harmful and will leave the final decision to the jury without ministerial certificates.
The question is whether with all those changes we want to provide grounds—sometimes loosely defined—that would justify public disclosure of information that Parliament will have decided should be kept close. I am sure that we should not.
§ Mr. Robert Maclennan (Caithness and Sutherland)
The Home Secretary's early intervention in the debate has been helpful, because it has revealed the poverty of the Government's case at an early stage. We shall not now have to indulge in speculation about how the Government will deploy their defence, but can instead examine the argument that the Home Secretary has used to seek to deflect almost universal criticism of the Government's refusal to adopt a public interest defence. There was widespread support for the Government's attempt to amend section 2 of the Official Secrets Act, but by digging 471 in his heels against the public interest defence the Home Secretary has frittered away the goodwill that he undoubtedly enjoyed when he embarked on this task.
I shall speak specifically to new clause 5, which stands in my name and that of my hon. Friend the Member for Orkney and Shetland (Mr. Wallace), but before I do so I should like to discuss amendments Nos. 81 and 16, in the name of the hon. Member for Aldridge-Brownhills (Mr. Shepherd). Their purpose is to restrict the scope of the offence relating to disclosures about security or intelligence to disclosures about the lawful activities of the security and intelligence services. If the amendments were carried, it would not be an offence to reveal information about the illegal activities of the service. That would deter such activities, as anyone contemplating illegal activity would know that he ran a greater risk of being publicly exposed. The Home Secretary did not refer to amendments Nos. 81 and 16, and perhaps he will do so later in the debate as they could be accepted without undermining the Government's objectives as he outlined them.
We went over a good deal of the ground in our debates last week, but there are one or two points that I should like to make for the first time. It should be recognised that there may be a particular benefit to society in the unauthorised disclosure of information, even if that causes damage, and such a case is not entirely hypothetical. The Government considered the issue back in 1979 following an adverse report by the Parliamentary Commissioner for Administration and the production of a report by the Civil Service Department called "Legal Entitlements and Administrative Practices". A committee was set up under the chairmanship of Lord Deedes with the advantage of the membership of Lord Croham and a number of other distinguished lawyers and administrators. That report proffered advice from the Lord Advocate's Department in Scotland:There would be fraudulent silence if an official had previously given information which he subsequently discovered to be incorrect and failed to communicate the true situation, if that failure would result in the person remaining ignorant of a right to claim.The Director of Public Prosecutions reported that such silence could also amount to a conspiracy to defraud in English law. The Government's committee reported:In constitutional terms, the Minister is responsible for the actions of his Departmental staff, who act on his behalf and whose authority is delegated to them by him. This, however, does not absolve the individual civil servant from his obligation to act within the law in carrying out his duties. If he breaks the law he cannot seek to excuse himself in terms of the constitutional responsibility of his Minister.It is widely understood that the Bill makes the civil servant's position even more difficult than that described in the Government's own document of 1979, and it is interesting to note that the original advice was given by the man who is now Lord Chancellor. The Bill would make the civil servant's position more difficult because it would force him to choose between making an unauthorised disclosure which could cause damage—factually demonstrable damage or conclusively deemed damage—and remaining a silent party to a criminal offence. In advancing the public interest defence, we seek to protect civil servants from that dilemma. That is part of the argument behind my new clause 5, which differs slightly from new clause 4, 472 tabled by the hon. Member for Aldridge-Brownhills, although I should be ready to support his new clause if the Minister preferred it to mine.
The form of defence that I advocate would require that a Crown servant should first have taken reasonable steps to comply with established procedures for making such disclosures to the appropriate authorities but that they should have had no effect. I acknowledge freely that that defence is more akin to that under the civil law of confidence in which the balancing of competing public interests is involved. The fact that this can be done had been shown conclusively by the Law Commissions. The Law Commission reported on this matter in October 1981 and the Scottish Law Commission in December 1984.
The more recent of the reports, the Scottish Law Commission report, stated the case straightforwardly:We have no doubt that the law should be prepared to recognise that use or disclosure of confidential information in the public interest may sometimes be permissible and justifiable. Unless this is clearly recognised, the law on breach of confidence could become a shield for those engaged in criminal or other antisocial activity.I readily acknowledge that those remarks were made in the context of the amendment of the civil law. The conclusions of the English Law Commission were equally forceful, and its consideration of the common law supports the conclusion that I have described. If the court is capable of balancing public interest considerations in the civil law—as it has in a number of cases—I do not see why it cannot similarly balance public interest considerations in criminal law cases. I put it to the Home Secretary that, while his attempt to distingush may be historically interesting, it is not relevant to the argument.
§ Mr. Archer
Would not the hon. Gentleman go a step further than that? If it is unjustifiable to apply civil sanctions without making that balance, is it not even more unjustifiable to apply criminal sanctions without doing so?
§ Mr. Maclennan
I agree with the right hon. and learned Gentleman.
The Home Secretary has shown the weakness of the ground on which he stands by his uncertainty in dealing with the legal situation. He has tried to run the argument that there is no such thing as a public interest defence in the criminal law. That argument has been disproved and displaced, and he has heard examples of such a public interest defence. So he has modified his position to suggest that there is no public interest defence in the sphere of official secrets.
To abbreviate the debate, which no doubt will be a long one, I shall not rehearse at length arguments about the Ponting case. Clearly, in that case a public interest defence was successfully deployed by Clive Ponting and was a contributory factor in his acquittal. The Home Secretary is standing on very weak ground if he is arguing that the law of England on this matter was set out by Mr. Justice McCowan in his statement in that case, and if that is the only ground on which he rests his argument that there is no such defence in criminal law. He has not succeeded in persuading the House.
The public importance of having a public interest defence cannot be overstated. The Bill is taking existing legal protection away from civil servants and the 473 possessors of official information who have good reason to be convinced that there is wrongdoing and that the public interest is served by disclosing this fact.
The Home Secretary has argued that the official channels of communication are sufficient. But although improved avenues from those that existed in the past can be used and relied on by a concerned civil servant, to have his concerns ventilated, higher up the service, very few of us, in the light of the "Spycatcher" case, will feel total confidence that the senior civil servants will necessarily take the view of the concerned official, and not the view of the Prime Minister, as she instructed Sir Robert Armstrong to take her case and point of view and contest it in the courts around the world. Few of us believe that in other cases the political view of the political head of department will not prevail against the view of an official who is perhaps at a much lower level that what will be done will be done properly in the public interest.
I do not believe that the law proposed by the Home Secretary is a good law, because it will not work. The sense of public and civic responsibility that imbues our Civil Service will override even the consideration of the possible criminal penalty that a civil servant may suffer as a result of revealing wrongdoing.
This is plainly a response to the "Spycatcher" case and, more directly, the Ponting case. It will fail in its objective, but it will not fail without great hardship and uncertainty and agonising. It will take away from patriotic civil servants who are seeking to put the interests of the nation before the corporate interest of the body in which the wrongdoing is done a legitimate protection that they ought to enjoy in the law of the land, and which they do enjoy in the civil law. There is no argument but that they will not enjoy it in future under the criminal law.
§ Mr. Richard Shepherd
It is always worth bearing in mind what the Bill does not deal with. It is not about section I offences of crime, espionage and treason. It is directing its attention to the generality of Government information in a number of specified areas that we think ought to be secured. The Government contend that that security should descend so low as to cover documents that are currently classified as confidential. We are looking to see whether the criminal law should be appropriate to that. The Government further contend that from as low a degree of secrecy as confidentiality they need to apply two years imprisonment and take in the whole grading of document classification in Whitehall.
The Government's proposition to the House in the Bill is that it is necessary to send a man or woman to prison even if he or she reveals crime or fraud or iniquity, without their having any defence or the Government's having to adduce any form of damage or harm. That is an outrageous and monstrous proposition. It is a proposition that tyrants hide behind. It is a proposition that should be rejected by the Commons of Britain. There is no way that this has ever been an acceptable contention outside the Napoleonic wars or the darkest days of the Stuart monarchy. It is something which we fought to overturn. A Conservative Government come to the House and contend that it is necessary to send someone to prison for up to two years, without his having a defence, even if the information relates only in Civil Service classification terms to "confidential". I think that that proposition is one we should want to reject.
474 We have failed to look at the classification, or succeed in encouraging the Government to be more generous in their view of who should be covered by the absolute offence category. We learnt last Wednesday, in an extraordinary debate, that the Home Secretary, or the Government of the day, can nominate anyone to be covered by the category of absolute offences. That, therefore, means that, should it be in the mind of a Home Secretary who is neither as benign as my right hon. Friend nor a Conservative—it is for a generation later that we are legislating—he could nominate the editors of newspapers if necessary, if in his opinion the measure was so loosely drawn that the Government would not accept that it required refinement to meet what they had been saying offstage.
We have often had this sort of difficulty when pressing new clauses and amendments. There have been press releases making assertions about the damage test. I have heard my right hon. Friend talking about serious damage. The Government write to newspaper editors and say, "We will prosecute only where serious damage is involved." They write to the hon. Member for Linlithgow (Mr. Dalyell) and talk about serious damage. On Second Reading my right hon. Friend the Home Secretary talked about serious damage being incurred before the Government would invoke the criminal law.
Yet look at the Bill. It does not mention "serious damage" anywhere. It trips down a degree of classification, and says "damage"—in order to meet some of the contentions that a man or woman should go to prison, possibly without a defence or the opportunity to mount one, or that the Government have only to establish the lowest level of damage: confidentiality. In some cases the evidence is so stacked against the defence as to make it difficult for them to overcome the prosecution's contention on a narrow front, such as that the Home Secretary did not take up or respond to clause 3(3) in which it is deemed that damage is effective because a document is confidential. Almost every document I have ever heard about in Whitehall, or between Governments, is marked "confidential", so that trivialises the damage test that the Government have to meet.
That is why we say, having been unable so far to coax the Government into generosity and a realisation that they are the representatives of the British people, through the House of Commons, and not the state aggrandising itself at the expense of the House of Commons, that there ought to be some amelioration of the Bill, and some brake on the Attorney-General raising a prosecution on the basis of something which is trivial, but could possibly succeed in a criminal prosecution in the courts. That is why my hon. Friends, and right hon. and hon. Gentlemen in other parts of the House, have expressed a desire for some form of public interest defence. As I said, it is not as caricatured in the White Paper. It is set out fairly specifically in new clause 4.
§ Mr. William Powell (Corby)
Supposing a jury is trying a person charged under new clause 1, which has been tabled by the right hon. :Member for Birmingham, Sparkbrook (Mr. Hattersley), and they conclude that the disclosure was not in the public interest but that, when it was made, the man being prosecuted genuinely believed that it was in the public interest for it to be disclosed. Would that ensure that he would be acquitted?
§ Mr. Shepherd
Until now I had assumed that my hon. Friend was a distinguished lawyer. I understood that that was his profession. It is for the jury to determine guilt. If they find that the man has committed an offence, no matter of his calling out that it is in the public interest, they will determine his freedom. The jury will decide. In those circumstances, the jury will find him guilty.
The point about a public interest defence is that there is a mechanism for the individual to say that, in the public interest, the revelation of crime or fraud overcomes the fact that he released a confidential document and therefore overcomes the fact that the prosecution merely has to prove that he has done some trivial damage. The jury can weigh in their consideration whether his revelation of fraud or of crime was in the public interest. That does not stop the disciplinary procedures of the Civil Service coming into play. It does not mean that the man will not be dismissed, but it means that he can at least say, "I have acted in an honourable way."
I read in The Daily Telegraph of last MondayWhistleblower law to break Left's grip".
It seems that the Government, through their new Local Government and Housing Bill—I have no doubt that if I or The Daily Telegraph have got it wrong we will be corrected—will seek to appoint what The Daily Telegraph, I am sure, wrongly characterises as whistle blowersempowered to speak out against illegal or unfair actions as part of a campaign to raise standards of local government".What they think is sauce for the goose is not sauce for the gander. I do not know whether many people would say that crime or abuse goes on—The Daily Telegraph refers to illegal or unfair actions—in local government. We want it revealed. I should think that all hon. Members will march through the Lobbies in support of that contention.
§ Mr. Robin Corbett (Birmingham, Erdington)
The hon. Gentleman is quite right. There has been the most disgraceful leak. The Local Government and Housing Bill was published yesterday. The name "whistle blower" does not appear in the Bill. He is generally called a monitoring officer. In all other details, the hon. Gentleman is right. The Bill refers to contravention by the authority, by any committee, and so on, of the rule of law or of any code of practice, maladministration or injustice. It is on all fours with the hon. Gentleman's point.
§ Mr. Kenneth Hind (Lancashire, West)
I stand in defence of my hon. Friend the Member for Corby (Mr. Powell). Is there not a major flaw in new clauses 1 and 4? It is what the person making the disclosure actually believes—[Interruption.] No. New clause 4 states that he must havereasonable cause to believe that it indicated the existence of crime, fraud, abuse of authority, neglect in the performance of official duty or other misconduct.If a person did it in good faith and had reasonable cause at the time, but it is wrong, the jury will acquit him, despite the harm and damage to the national interest. The new clause relates to what a person believes, not to what the situation actually is.
§ Mr. Shepherd
The person must demonstrate to the satisfaction of the jury that he has met the criterion—that he has proved that the disclosure or retention of the 476 information, document or other article was in the public interest. As the Home Secretary has been arguing, it is then that the jury comes into play. It is for the jury to decide.
§ Sir Ian Gilmour (Chesham and Amersham)
On a more fundamental point, the defence must have a reasonable cause to believe. A defendant cannot say, "I believe that." If it is idiotic, the jury will not allow it. It is reasonable cause, which, to some extent, is an objective test.
§ Mr. Shepherd
At the end of the day, that is the test. We may be sending people to prison. We are prepared to enact this legislation for people revealing crime or fraud. The Government say that that proposition is quite right.
At one stage last Wednesday hon. Members learnt of the wig maker of a former head of the Civil Service in 1918. The Minister said that it was an operational matter. It was quite right too, he told hon. Members, that that individual should be prosecuted. We want to ensure that that sort of nonsense is not contained in the Bill or could be interpreted by a court of law. Therefore, we are trying to provide the means by which a jury and, therefore, the House can be alerted to facts about our national life.
§ Mr. Hind
I should like my hon. Friend to consider this point again. He is discussing the public interest. The public interest is exposed in his argument, but he must look at the test that follows, which would show a jury what the public interest is. His test of defining the public interest is what the person making the disclosure reasonably believes is a criminal offence or whatever. If that is erroneous, much damage can be done to the public interest.
§ Mr. Shepherd
My hon. Friend misunderstands. If a person's judgment is erroneous, he is guilty and will be sentenced accordingly. He will be found guilty by the jury. It is a jury point.
§ Mr. Shepherd
I join my right hon. Friend the Home Secretary in asserting the value of the jury in determining the matter. It is in that spirit that one moves this contention.
There is the argument in the Duncan Sandys case which is well remembered by hon. Members who have long memories or are better read. That case occurred before the war, and the Committee of Privileges examined it. It made the point that—it follows what the hon. Member for Linlithgow (Mr. Dalyell) said—to go to a Member of Parliament is the right of every citizen in this country. One cannot express the freedoms and rights of the people without having access to a Member of Parliament. That is essential. With this legislation we do not provide the right to those covered by absolute offences to go to a Member of Parliament. We discover that we do not allow them to go to a solicitor. As I understood the debate last Wednesday, a man in the designated category or in the security services could not even seek advice from his solicitor because he would be imparting information that was contrary to the Act. It is an absolute offence—any information to any person. I hope that my right hon. Friend the Secretary of State will amend the Bill to take account of that fact.
§ Mr. Shepherd
I certainly hope so. My right hon. Friend and the Minister of State are always happy to remind us to read carefully what they have said, as one does. As I understood the debate, that is exactly what was said. It is an offence to reveal any information to anyone, to which the Minister added, "and quite right too".
§ Mr. Archer
Does the hon. Gentleman agree that the Minister of State appeared to say that someone would have committed an offence but that there might be some difficulty in proving it?
§ Mr. Shepherd
I do not want to detain the Committee, because many hon. Members want to speak. We are asking why it is right to send someone to prison without a defence for revealing a crime or fraud. Is it not necessary in our democratic country to know when crime or fraud are committed in Government? We cannot have accountable Government unless we know what they do. If we erect barriers so that we deny the citizen and the House the ability to know that information, we may never be able to judge appropriately and properly whether the Government are ethical, appropriate and working in the interests of this country.
§ Mr. Merlyn Rees (Morley and Leeds, South)
It is always a pleasure to speak after the hon. Member for Aldridge-Brownhills (Mr. Shepherd). He brings passion to issues which over the years have become pedantic. They come as much alive as the constitutional debates of the 18th century. As an older Member of Parliament, I simply say to him that it raised my heart to hear him talk as he did about the role of a Member of Parliament. Listening to the debate last evening, I wondered whether the role of a Member of Parliament had degenerated into knockabout farce to replace the music halls. The way the hon. Gentleman dealt with a difficult issue lifted my heart.
I am glad to speak after the Home Secretary, because what he said added force to my view that, on this subject and many others, it is difficult to get the legislation right. Earlier in the debate, there was a reference to four former permanent secretaries who wrote a letter to The Times about procedures within the Civil Service. The Home Secretary explained that they were arguing that the Government's proposals did not go far enough. I simply use that example to show that the Government think the Bill goes far enough, but that those former civil servants said that earlier changes did not go far enough.
As to my experience of the Official Secrets Act 1911, I want to refer to the Franks report. I was a member of the Franks committee which so many called in aid when arguing in favour of reform of section 2 of the Official Secrets Act. I do not believe that any of us who were members of the committee at that time thought that we had got everything absolutely right. I certainly did not when, years later, I made a statement in the House and issued a White Paper.
I accept that no Bill was forthcoming in my day. We see what is happening now, when the Government have a majority of over 100. With a majority of minus three, the Leader of the House would have put me in my place if I 478 had proposed legislation. We had not reached the point of dealing with certain issues, not the least of them being the question of the public interest.
When I was on the Franks committee, the Prime Minister of the day gave evidence to it. In a different context, I accept, he said that there should be a new defence that publication was in the public interest. Therefore, I could not forget that, when I eventually introduced legislation, it had to include something about the public interest, however difficult it was.
When the Home Secretary talked about the public interest, he confused me. It is not very difficult to do so in this respect, because I am not a lawyer. I do not wish to be disrespectful to the Home Secretary, but I wonder whether there should be a Law Officer on the Treasury Front Bench. Lawyers, distinguished or otherwise, have been arguing about what the Bill means. If they are doing that here, before the legislation receives Royal Assent, heaven knows what will happen when they get into court.
I ask the Home Secretary to read paragraph 37 of the Franks report, headed:Control over prosecutions by the Attorney-General and the Lord Advocate.The paragraph says:This decision is taken by the Attorney in his capacity as the Crown's senior Law Officer, responsible for the enforcement of the criminal law, not in his capacity as a Minister in the Government of the day. In deciding whether to prosecute he applies his judgment to the balance of public interest involved.At the moment, this public interest aspect is firmly in the legislation. I remember the then Attorney-General approaching me from what seemed a long distance across the room. He wanted to consult me, although making it absolutely clear that the decision was his, about whether it would be in the public interest to prosecute. The Attorney made his own decision on that case, although he consulted others—including, I think, the right hon. Member for Plymouth, Devonport (Dr. Owen). We were not consulted together, but the Attorney was taking a view of the public interest.
The names of the Law Officers are in the Bill. Therefore, will not the Law Officer still take a public interest view before deciding whether to prosecute?
§ Mr. Archer
So that we may keep our minds clear about this, does my right hon. Friend agree that the question whether it is in the public interest to prosecute is a very different question from whether it was in the public interest to make the original disclosure?
§ Mr. Rees
I understand that. That is why I am raising the matter. It is with diffidence that I return to the Home Secretary the point that if there is a Law Officer public interest concept in the legislation at all, there ought to be a public interest concept somewhere in the original decision.
The public interest is a vital concern in the legislation. I realise that we have been debating the amendment for a long time; we will probably still be debating it at 9 o'clock or 10 o'clock, because it is a most important issue. I hope that we do not hear talk of a closure. This is an important issue, which the House has to tease out and discuss. It is not enough to argue that the amendments in the names of my right hon. and hon. Friends and other hon. Members have been drafted wrongly. The Government should have a chance to come back to us on Report. I hope that there will be a Report stage. Government Whips may come in 479 and say, "My God, are they still at it? What time are we going to take?" But this is not the Water Bill or another privatisation Bill, important though they are.
As the hon. Member for Aldridge-Brownhills made clear, the public interest in a democratic society is an important issue. Whatever Government are in power, society has every right to protect discussion and papers. We are arging about the balance of public interest, which changes from decade to decade. When I came to the House, less knowledgeable on these matters than I am now, I found hon. Members on both sides of the House who were concerned about such issues although they did not loom large in the so-called quality newspapers. The whole issue has developed since because of cases. I do not believe that we have heard the end of cases. People being what they are, there will be other cases. Therefore, it is important that we examine carefully the matter of the public interest.
I base my remarks on what the Franks committee reported nearly 17 years ago. What came out then is relevant to what we are talking about now. The recommendations which we made were based on words written with all the majesty of a proconsul—like Lord Franks, with all his experience in Government service, in wartime, in the university world and as an ambassador eventually in Washington. He was a most remarkable man. Paragraph 116 of the report said:National security is widely accepted as the prime justification for employing criminal sanctions to protect official information.That is where I start. Later we said:In our view, the appropriate test on this basis, in relation to national security,"—we are talking about national security—is that unauthorised disclosure would cause serious injury to the nation.I do not want to quote much more, but reading it afresh brings it all back to me. In paragraph 118, we said:This means that the criminal law would not apply to information the unauthorised disclosure of which would cause some injury to the interests of the nation, but short of serious injury.Many people would be surprised on reading this to see that it isserious injury" and not "some serious injury".
However difficult it is to draw it up, that should be the basis of any legislation. How does one make one's judgment on that? I admit that there were difficulties in that respect. I would like to relate the matter to current issues. We said that criminal proceedings would be taken only against issues—documents, I suppose, in detail— where the mark on the paper was "secret" and above: that is, "secret" and "top secret". I admit, too, that the difficulties were that classifications of Government documents are for administrative purposes. As hon. Members will know, they are the vehicle by which civil servants know how to protect the contents.
There are far more classified documents in the Ministry of Defence, the Foreign and Commonwealth Office, the Home Office and the Northern Ireland Office than there are in the Department of Education and Science. How are they protected? With "secret", for example at the top of the document, the private office knows how to handle them. Whether the classification told the truth about the nature of the document went out of the window long ago. Classifications were an administrative device. We felt that 480 there would have to be a clean out in Government service, that the classifications would have to be changed, and that documents within the Government service would have to be looked at from time to time to see whether the nomenclature at the top bore any sense.
At home I have some documents which were issued when I was Northern Ireland Secretary with, I believe the nomenclature "confidential". They were reports about what the press had been saying about the situation in Northern Ireland at a difficult time. Given the feelings in the Northern Ireland community at that time, if that document had gone out of the Northern Ireland Office, heaven only knows what conspiratorial thoughts would have arisen. The classification, therefore, was perfectly proper, but about six months later one could have used those documents to wrap up fish and chips down the Shankill. The classification was right at the time but wrong a few months later.
What do the classifications mean? I shall relate it to the Government's current problem. Let us start at the lowest classification:RESTRICTED. Undesirable in the interest of the nation.It says underneath that:The 'interests of the nation' are interpreted broadly.The classifications continue:CONFIDENTIAL. Prejudicial to the interests of the nation.SECRET. Serious injury to the interests of the nation.That is why we picked up the words "serious injury". Then:TOP SECRET. Exceptionally grave damage to the nation.I picked that matter up because the other night, on "Newsnight", there was last week's leaked document about the White Paper on the reform of the National Health Service. At the top of that document, it said "Secret". In other words, if that document had got out, what it was saying was that it would cause serious injury to the nation. I do not believe that for one moment. What should have been at the top of that document was: "Keep this quiet until the Minister has revealed it in the House of Commons next Tuesday," and it should have been treated in that way. But secret? The classification was being used for administrative purposes. If the Government ever find out who leaked it—although today's Evening Standard puts a different interpretation on who did leak it—the treatment of the man or woman concerned would be determined under the Franks recommendations, because of the word "secret" at the top of the documents.
Whatever the Government say, it is important, when deciding these new clauses and amendments, to hold on to "serious injury" as properly defined. We shall have to put our minds to that definition, because there is a public interest.
Something I did not realise until I was on the Franks committee—not many other people knew it either—was that under the legislation, there had grown up conventions—let alone what was in the Act—that whether people had given information away was determined by whether they were authorised. We then discovered that some senior civil servants and Ministers were self-authorising. That meant that if a civil servant on the clerical grade leaked a "secret" document he was in real trouble. Of course, we are not talking about spies and section 1 of the Act. If a senior civil 481 servant leaked a secret document or talked about it over lunch, he would not be in trouble. Similarly, if the Minister did it, it would be self-authorised.
The question of authorisation is extremely important in the light of the story in the Evening Standard, which I do not believe. I wanted to use the article to authorise this story. It says:No. 10 dilemma … will they tell Maggie?
Affair of the Cabinet grass. It says that it was leaked by a Cabinet Minister, but I do not believe that for one moment.
§ Mr. Rees
Let me get my other line in.
I have never known of a Cabinet Minister coming back to the House after a Cabinet meeting and talking to the press about what had happened that morning. I believe that that is a fiction, from the imagination of thriller writers. However, if it happened, it would be self-authorisation. That raises an important issue. It is an issue which goes back to the Duncan Sandys case, which was a much more important issue. If this were to be a Cabinet Minister, I bet that he or she would not be brought to court. I believe that the Attorney-General would say that it was not in the public interest to bring the matter before the court.
§ Mr. Baldry
Of course, the only reason that that has come out in the Evening Standard is that the press has to give some explanation of why the hon. Member for Livingston (Mr. Cook) performed so appallingly at the Dispatch Box on the National Health Service White Paper. The only justification the press could come up with was that it was in some way a leak from the Government Benches to throw him off his stride. The truth is that it was undoubtedly an unauthorised leak and, even given four days studying it, the hon. Gentleman still muffed it at the Dispatch Box.
§ Mr. Rees
As I wake up in the morning, the first thought that comes into my mind is not that I am not at the Dispatch Box. The hon. Member should take into account the fact that one is not eaten up with great ambition to do that, but it just happens. If the hon. Gentleman is saying that this did not happen, and the media have made it up, he must forgive me. However, if we suppose that it happened, what would the Attorney-General do if it came to his notice, via MI5, which apparently has a role in all this business, including business connected with hon. Members on the Floor of Parliament?
§ Mr. Buchan
My hon. Friend is being too moderate about this matter. He says that he does not believe this story, but surely the question is whether he has reasonable cause to believe it.
§ Mr. Rees
What we are showing this evening—I hope the Government will allow us to have such a discussion on the other clauses—is that it is important to have a discussion on this clause. In the second major group of amendments, we should find something called the "public interest".
I went into the court during the Ponting case because the documentation was not "secret" and above. It was the Government who said that it was not a matter of national 482 security. The man should have been dealt with in other ways and not brought before the court. If it had been a matter of national security, there is no way I would have become involved, but it was not a matter of national security. It is national security and serious injury that should be the linchpin. The rest should be dealt with in the Government service by the sort of procedures that major firms have and all of us have in any organisation to which we belong.
I ask the Government to give us a chance. It will come up again in the Lords, when very eminent lawyers will be talking about it. There is a case, in a free society, on that balance, as Attorneys-General have had to take into account over the years in a very non-political way. Is it in the public interest? That was the question Sam Silkin put to me on one issue. Whether his decision was right or wrong is not a matter for me. There ought to be a matter of public interest in this legislation.
§ Sir Ian Gilmour
I speak in support of new clause 4 in the names of my hon. Friends the Members for Aldridge-Brownhills (Mr. Shepherd) and for Thanet, South (Mr. Aitken) and other right hon. and hon. Members who, as we know, recommend the public interest defence.
Having heard my right hon. Friend the Home Secretary and having read his speeches on the subject, I am still not clear why he does not accept new clause 4. I should have thought that the Government would be in favour of people acting in the public interest, instead of which they are strongly against it. I should like to look at the reasons that have been given. I do not want to enter into the argument between my right hon. Friend and the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) about whether there is a public interest defence under the present law. That does not seem to me to be altogether relevant. But I was surprised by what my right hon. Friend said about the Obscene Publications Act 1959. Although certainly that Act is defective, he would surely concede that it is a great deal better than what went before. so it does not become him to denigrate the defence in that. I think that he was perhaps not speaking under full advisement.
The point is that whether there is or is not a public interest defence under the present law is not relevant now because in the spheres with which we are dealing the law is becoming stricter. We all concede that that part of the Bill is excellent. The Home Secretary has cleared away the criminal law from great areas, but by implication he agreed that the law is becoming stricter in certain spheres when he said originally that the present law was too weak and too wide. Clearly he is now making it narrower and stricter, so the absence of a public sector defence now—if there is such an absence—is not relevant to what should happen in the future.
New clause 4, which is much the same as new clause 1 but meets the point to which my right hon. Friend the Home Secretary referred, ensures that a civil servant or public employee would have to go through the established procedures and that those procedures would have to fail before the public sector defence would operate. Then, as we know, the defence would be existence of crime. I cannot believe that the Government would like crime by a public servant not to be revealed—or would they? I should have thought that the Home Secretary, especially in view of his other responsibilities, would have been quite strongly 483 against crime. The same surely applies to fraud, abuse of authority and negligence. I thought that my right hon. Friend the Home Secretary rather trivialised the matter when he referred to not answering a letter. Clearly that would not apply. The idea that the jury would listen to such a defence is clearly wrong.
New clause 4 is fairly strictly drawn. It would not enable a defendant to say that he did not believe in the Vietnam war, the Falklands war or the Nigerian civil war. It is not a question of disagreeing with public policy. He would have to have found some crime or misdemeanour—something very wrong in the public service—that he was revealing. I cannot see why my right hon. Friend the Home Secretary is not prepared to go along with that. He said earlier that he was against such a defence because it should be no part of the narrowly targeted scheme that is proposed, but it is difficult to think of this law as a narrowly targeted scheme. It is more like a blunderbuss than a precision instrument, so that argument seems irrelevant. My right hon. Friend said that confusion would be brought into the law where the Government are seeking to achieve certainty, but there is seldom any certainty in the law when my learned colleagues on either side of the House, or indeed in the courts, get at it. For anybody who has listened to the debate either today or last Wednesday to think that there will be any great certainty in this law is surely an illusion.
What my right hon. Friend must have meant was that it was better to have a certain conviction than a defence which might get someone off. I cannot see what other meaning that sentence could have. Surely, on reflection, my right hon. Friend would agree that it is much better to have a slightly uncertain law which will prevent injustice than a certain law which will lead to people being wrongly and unjustly convicted. That is what the argument is about.
I suppose that my right hon. Friend will say that this is a matter that should be left to the jury. We all have great faith in the jury and are very pleased that the Government are going to allow it to continue and are not going to throw it open to any form of market or put it up for auction—that it will remain as a palladium of our liberties and so forth. It is very important that the jury should continue, but the jury is not infallible, as the Home Office has every reason to know.
I certainly have every reason to know it because one of my constituents was wrongly convicted, had his life ruined as a result and was then let out by one of my right hon. Friend's predecessors. That illustrates how wrong a jury can be. It was not in any way the fault of the judge, who summed up in favour of the defendent. It was the fault of the jury—and, of course, the fault of the Court of Appeal which said that the jury could not be wrong and must be infallible. The second time round they got it right, but by that time my constituent's life had been more or less ruined.
It is not enough, therefore, to leave it to the jury. The law must be clarified so that the jury knows what it is allowed to consider and what it is not allowed to consider. It is surely far better for the jury and for the law that 484 people who are acting correctly in the public interest should not be sent to prison for doing something which most people would think was right.
As the arguments that we have heard against the public interest defence have been extremely threadbare, I hope that the Government will think again.
§ Mr. Foot
May I first make one or two personal references. I do not mean them in any offensive way, but I want to refer to one or two hon. Members who have spoken earlier in the debate.
The right hon. Member for Castle Point (Sir B. Braine), the Father of the House, tabled a new clause and apparently received a favourable response from the Home Secretary, who indicated that the right hon. Gentleman had understood the Bill and the new openings that would arise if it went through. Therefore, the dangers that the right hon. Gentleman described when in the past he played such a distinguished part in bringing these matters to the House did not arise. It was all covered by the Bill.
I certainly hope that that is the case. The right hon. Gentleman raised important matters. I say that particularly because he referred to the work of the Health and Safety Executive, which I was responsible for establishing. It was largely because of the right hon. Gentleman's activities that we ensured that the HSE covered various areas. So I hope very much that it is true that, as the Home Secretary seemed to suggest, the public safety problem is now removed, and that it will be confirmed by including the new clause, or the equivalent of its words if the Government do not think that those words will do the job satisfactorily, in the Bill. I believe that that would assist and I hope that everyone would be satisfied.
It was very important that my hon. Friend the Member for Linlithgow (Mr. Dalyell) reminded us at the beginning of the debate of the Ponting case, which was one of the origins of the Bill—it was not the sole one, but obviously it had an effect on the Government's thinking. It is right that the House of Commons and the Government should draw the proper conclusions from that case. The Government have drawn the wrong one, but that is another matter.
My hon. Friend the Member for Linlithgow was right to raise the matter afresh because it is part of the proper prelude to this debate. I emphasise that, because I disagree with my hon. Friend about the Belgrano affair. I have never thought that he was right about that because that ship might quite easily have returned to the battle line. However, that does not alter the fact—indeed, it reinforces it—that it was wrong that false information should have been given to Ministers at the Ministry of Defence. It was also wrong that Ministers were prepared to purvey some of that false information to the House.
It is pretty wretched of the right hon. Member for Henley (Mr. Heseltine) not to turn up for these debates—I think he is still a Member of the House. He should have come to speak, particularly on matters in which he had a close interest at the time. Many hon. Members will remember the speech that the right hon. Gentleman made at the time of the Ponting affair. He should come to the House to say whether he still holds the views that he tried to persuade the House to adopt at that time.
The Ponting case has affected this legislation and it is important that we should examine it carefully. The origin of the Bill is not, as the Home Secretary said, that the Government carried out a general examination of the way 485 that present legislation was working, examined the Franks report and came forward with a great liberal reform. That was not their motive for introducing the Bill—although they did examine the past.
Two cases inspired—if that is the proper term—the Government to introduce this legislation. I can clinch that claim by asking hon. Members to imagine how the Home Secretary persuaded the Prime Minister to give both her and her Cabinet's support to the Bill. Does anybody imagine that he went to her and said, "I propose to deal with the official secrets trouble that we have experienced over the past few years by introducing a great liberal reforming measure that will make it easier to deal generously with such cases"? The Home Secretary would hardly have persuaded her on the spot with such an appeal. The right hon. Gentleman did not say to the Prime Minister, "This is the way to establish your great liberal reputation and make your predecessor's Administration seem a reactionary one."
I picture it another way, with the Prime Minister asking the right hon. Gentleman, "Well, can you assure me that your change in the law will mean that we shall not have another Ponting or `Spycatcher' case? Will it solve difficulties such as those two?" Whatever variations the Government permit in other parts of the Bill, and I hope that some will be made, solving such difficulties forms the linchpin of the Bill.
Central to the Bill—we discussed it last week, too—is the fact that the Government say that they will lay down for the first time an absolute principle of confidentiality, combined with a refusal to permit a public interest defence. The Government believe that those two factors will ensure that they have a new form of protection for official secrets, and that they will not have to suffer the humiliation of another Ponting or "Spycatcher" case. It is likely that the Home Secretary gave the Prime Minister assurances on both those matters.
It is also probable that Law Officers were invited in to discuss the matter. It is deplorable that those Law Officers are not present for this debate. I mean no disrespect to the Minister of State, who stood up to last week's blast and battering with great fortitude and allowed many other hon. Members to put their arguments. I do not class him with some of his colleagues of similar rank in other Departments—the parade of parliamentary popinjays—with whom this House has to put up. However, I say to the Minister and the Home Secretary that it is scandalous that the Bill should be carried through the House with no Law Officers present—particularly when, as I have said, it was the mistaken advice that they gave over the past two or three years that was largely responsible for the Government's difficulties.
In the Ponting case, the Law Officers' advice turned out to be wrong. The "Spycatcher" case was an even more glaring, persistent and expensive affair which continued month after month, with the Prime Minister and Home Office and Foreign Office officials asking the Attorney-General and the Solicitor-General for their advice. Now, when we come to make a change in the Bill, we do not even have the chance to see whether the Law Officers agree with our interpretation of the Bill.
The Home Secretary has frequently attended the debates, but is not qualified to tell us the exact legal position. He has not answered the demands made by Opposition Members. It would have been much better if the Minister had arranged for the Attorney-General to 486 wind up the debate on this central part of the Bill. We need to know whether it is time that no public interest defence existed before. The Home Secretary is wrong to say that, and the more he repeats it, the more he injures his case. He should understand that a public interest defence has been used effectively in the past in the cases of the hon. Member for Thanet, South (Mr. Aitken) and of Ponting and "Spycatcher".
When the "Spycatcher" case went to the Law Lords, they expressed a different view on the matter from that persistently taken over the previous two years by the Executive, as advised by its Law Officers. The reason for the Bill lies in all these past events. However, instead of drawing the proper conclusions from them and declaring that the law should be made more liberal, the Government have introduced a Bill that tightens the law and removes the public interest defence from some parts of it.
The right hon. Member for Old Bexley and Sidcup (Mr. Heath) first raised the Sandys affair to which I referred last week. The Minister of State rightly said that he did not know as much about it as I did. He spoke as if it were not a matter of major consequence, but it was. It was not only that it involved the Committee of Privileges, although that was an important element. The Duncan Sandys case was referred to the Committee of Privileges. That offered protection to a civil servant or a member of the defence services because it allowed him to approach a Member of Parliament. That was extremely important, but the matter was never brought to a conclusion.
The Government of the day were one of the most wretched in our history and would have pursued Churchill and those associated with him in the most bitter manner. At one stage, they almost tried to destroy him in his constituency. At that time, Churchill had to be careful about the way in which he defended himself because the Government would not have refrained from convicting him, Duncan Sandys and his associates of being guilty of betraying the nation.
I remember the spirit of vengeance that sometimes prevailed in the Whips' Office of the Conservative Government at that time. They were very bitter times. Even then, Churchill said that the Government could not proceed with an official secrets Act of that kind. He said that there must be proper protection not only for a civil servant to be able to approach a Member of Parliament, but also for the patriotic citizens who said, "We shall tell Churchill and other people what are the real dangers."
That defence was operable at that time. The matter did not go to a court. There was a general consensus that, in the last resort, Churchill and his associates could not be pursued. That was an estimate of the element of public interest involved in the affair. A public interest defence was available to people approaching a Member of Parliament. There was a public interest defence in that critical issue even under the wretched Official Secrets Act 1911 which we all know must be abolished. Let no one deny that they were critical issues. They involved the life of the state and people had to make up their minds what they were going to do. Some brave people decided to defy what was apparently the Government's view at the time, and that view was as obtuse as this Government's approach to the Bill.
Mr. Hore-Belisha and Neville Chamberlain said that all right rested with them. They claimed to be the people who 487 knew and had to be obeyed. They were the Executive with the almighty power. Anyone who tried to trespass on that had to be dealt with by being driven out of public life. That is what would have happened if Churchill had gone down on the Duncan Sandys case. It would have been impossible for people to estimate the consequences for this country. Given that background, it is pitiable for the Government to say that they are dealing with the question properly when they come to the House and cannot answer the question whether the people who took the honourable course of telling Churchill at the time of the Duncan Sandys case and thus broke their oath had done right.
The Government should take away the Bill and introduce much better proposals to deal with the matter. New clause I covers the question of a public interest defence better than any of the other new clauses. However, if the Government proceed with the Bill without any legal advice, with nothing but their majority on which to rely and with scarcely any discussion or attempt to listen to anyone, it will destroy for ever the Home Secretary's liberal reputation. His reputation stands a good deal higher than that of most of his colleagues, but, if he rams the Bill through in the face of such opposition, he will live to regret it all his life. I plead with him to go back to the Cabinet and say, "We shall have a public interest clause in this Bill because the House of Commons demands it."
§ Mr. Edward Heath (Old Bexley and Sidcup)
Having had an opportunity to join in the debate on an earlier occasion, I hope that this will be a brief contribution. On that occasion, I congratulated my right hon. Friend the Home Secretary on tackling this immensely difficult task. Today's debate, which has been serious and, in many ways, fascinating, has demonstrated both the problems involved and the skill with which the Home Secretary has attacked the problem.
The Bill is undoubtedly an improvement on what we discussed in the White Paper, but, at the same time, I do not believe that it is by any means absolutely right at present. I hope, therefore, that my right hon. Friend the Home Secretary who, naturally, from time to time shows slight impatience with our difficulty in understanding some aspects of the Bill, will regain all his patience, put up with us and recognise that there is great force in most of the arguments that have been put forward in the debate so far.
My right hon. Friend appeared to make his contribution with an unaccustomed rush. I am not sure whether he was trying to hide what he was saying or whether he was trying to prevent us from realising what he was not saying. However, I hope that he will examine these points because they are of immense importance. He can claim that arrangements are now made for civil servants who are aware of evil in their work to go up the ladder and endeavour to put matters right. We must ask ourselves, as has already been asked, exactly how practical that is.
A civil servant who complains will be told, "I must refer this to my senior officer". The matter will go up the ladder until it reaches the permanent secretary. After a chat at the customary weekly lunch of permanent secretaries, the permanent secretary will then say, "I must tell the Minister". The Minister will say, "I didn't realise all this was going on, but for heaven's sake keep it quiet—tell the fellow that it's all being dealt with and for heaven's sake don't let the press know about it". At what stage does the 488 civil servant take action? The Minister may say, "I must tell the Prime Minister," and the Prime Minister will say "For God's sake, think of that by-election—we must tell the fellow that we understand his anxiety but that it's really not justified."
What happens after that is crucial. I put it in a light-hearted way, but it is the crux of the matter. Does my right hon. Friend the Home Secretary believe that there is, or can be, a difference between the national interest and a Government's interest? That is the fundamental question. In my mind, there is no doubt about it because it is exactly the same with all constitutional philosophers throughout the ages. There is very often a difference between a national interest and the interest of a particular Government. When we are in opposition, we constantly point out in the House the great difference between the national interest and the interest of the Government then pursuing their policies. If we accept, therefore, that there is a difference between the national interest, described here as the public interest, and a Government's interest, we must find a way of safeguarding that difference. That is what this debate, the Bill and the Franks committee report are about. How can that difference be safeguarded?
The best suggestion that we have had so far—on the new clause tabled by my right hon. Friend the Member for Castle Point (Sir B. Braine)—is that the public interest must be taken into account. I would describe as artificial the point that has been made by lawyers among my hon. Friends about proof of reasonable judgment that the public interest was taken into account by the offending person.
I would go further than the deputy Leader of the Opposition, the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), who gave an example of corruption at an ordnance depot. He went so far as getting it put right. In my view, Parliament and the country have the right to know that the corruption existed and had been put right. I therefore go a stage further than the right hon. Gentleman, but I think that we agree. When evil has been committed and has been put right, it should be made known. If evil is committed, it should be brought to the notice of those who have to deal with it and if they do not deal with it it should be brought to the public notice. When it has been dealt with—and the action taken—the matter should be made public.
§ Mr. Dalyell
Would the right hon. Gentleman go along with the letter to The Times by Douglas Allen, Sir Patrick Nairne, Sir Frank Cooper and Sir Douglas Wass?
§ Mr. Heath
Yes, I would go along with that. Civil servants want more safeguards because they recognise the way in which civil servants are likely to react under the present system. One must be realistic about this.
I do not want to go over the matters which were raised by the right hon. Member for Blaenau Gwent (Mr. Foot) about how all this came about. The present Government have a problem about leakages—there can be no doubt about that—and they have sometimes sought to deal with them by prosecutions. Their problem arises from the fact that they have used their press office at No. 10 in a way which can be described as corrupt—in a way which went far beyond not only the achievements but even the aspirations of any previous Government. I am not asking the Home Secretary to nod his head in agreement with that, but he will know from his experience at No. 10 489 between 1970 and 1974 that what I have said is the case. If the lead is given in that way, others might be expected to follow it.
I have always had the greatest respect for the right hon. Member for Morley and Leeds, South (Mr. Rees), a former Home Secretary, though this evening he displayed extraordinary naivety when he expressed the view that it was impossible for any member of the present Cabinet to have left a Cabinet meeting and told the press and others about the contents of the National Health Service paper.
One of this Government's problems has been that, as differences inside the Cabinet have been so great—leading to the sacking or withdrawal of 22 members over the past few years—the tendency to talk has been irresistible. That has been followed by others at different departmental levels, and it is now part of the problem with which we have to deal.
I hope that the Home Secretary will accept the proposed new clause, or accept it in principle and say that it requires amendment. I do not understand how there can be any solid objection to the inclusion of public interest. It has been said time and again that there must not be any question of public interest, even though we have heard that it exists in, for example, the law on obscene publications.
The Home Secretary sounded what I thought was an ominous note when he said that the law on obscene publications was unsatisfactory. Does that mean that we are to have another prudish attack on the laws of this country, taking us back to the time when people had to go abroad to read what they wanted to read? Are we to have that from the present Home Secretary—[Interruption.] That is an interpretation of what my right hon. Friend said.
I see no reason why the public interest should not be embodied in the Bill. Speaking from experience, in the Leila Khaled case, the Attorney-General said that he had to take the public interest into account, and he did. Why cannot the public interest be taken into account in this legislation?
Dealing with health and safety, the Home Secretary said that it was most unlikely that a prosecution would be brought in certain cases. It is not enough to use the phrase "most unlikely" in this Committee. We have every right to say that we want to be absolutely sure, and we want it in a form that will enable us to be absolutely sure that the kind of action about which we have been speaking will not be taken.
When we last discussed this issue, I said that my test for all this was a simple question—under this measure, in this country, if it occurred, would we know about Irangate? That is still my test, though my question has not been answered. We would not have known anything about it. We would not have known about the evil policies, the hypocrisy, the corruption and the lies of President Reagan's regime. Is that justifiable in a modern democracy? Not for one moment.
Until I can be satisfied that this new legislation will deal not only with the problems about which hon. Members have been speaking but with the internal corruptions of Governments, I shall not be able to support it.
§ Dr. Owen
The former Prime Minister, the right hon. Member for Old Bexley and Sidcup (Mr. Heath) spoke with great conviction. The problem is that the Home 490 Secretary has in many ways produced a great improvement on the present law. Unfortunately, the measure has the fatal weakness of lacking a public interest defence. If that were inserted, many of those who might have reservations about some aspects of the legislation would give it a broad welcome.
Can we manage to persuade the Home Secretary to amend the Bill in that way, or is our problem not the Home Secretary but the Prime Minister? I suspect the latter to be the case, and our real problem is how to persuade her. We have tried today and on previous occasions to invoke history. The right hon. Member for Blaenau Gwent (Mr. Foot) did that today with great effectiveness.
The events of the 1930s should concern hon. Members, particularly the way in which Winston Churchill was briefed. That was a major issue which cannot be ignored. I became worried when the Home Secretary was asked about the revelation that the Cabinet in 1955 deliberately decided not to reveal the leak from the Windscale plant. The right hon. Gentleman said that he knew nothing about it.
It was one of the most serious recent cases, and. it showed how the Government, the Cabinet, thought that they were interpreting the national interest as their interest. When the Home Secretary studies those Cabinet papers he will probably conclude that they acted against the national and public interest.
That was the crucial point made by the right hon. Member for Old Bexley and Sidcup. We in Parliament will not accept that Cabinet, Government, national and public interest are at all times the same. We are well aware that there have been occasions, sometimes for good and sometimes for bad intentions, when democratic Governments, in this and other countries, have taken decisions against the national and public interest. The interests cannot be equated.
That is not just the view of hon. Members. It might be said that we are jealous of the Executive, that we are always on our guard, standing on our dignity and not ready to trust the Executive. We are speaking also of Law Lords, and in many distinguished judgments they have taken the same view. Consider, for example, Chandler v.
DPP in 1964, when Lord Reid said:Who, then, is to determine what is and what is riot prejudicial to the interests of the state? The question more frequently arises as to what is or is not in the public interest. I do not subscribe to the view that the Government or a Minister must always, or even as a general rule, have the last word about that.The Home Secretary will say that there is in the Bill, for the vast bulk of cases, the harm test. Because the harm test will go to a jury, they will reinterpret the right hon. Gentleman's law. When there is some other interest, the jury will try as hard as possible to inject some public interest, but will be advised by the judge not to take account of the public interest, I am not a lawyer, but I believe it will be difficult for counsel to argue the case for public interest because of what will be said.
I come to that group of people who will have no chance to argue in that way—people designated under the measure—those who work in the security and intelligence services or who come in touch with those services. These are people to whom I think we owe very special attention because they will have no defence—automatically, they will have committed a criminal offence.
Here again I should like to invoke a Law Lord. After all, the judgment of Lord Griffiths in the House of Lords 491 on the Attorney-General v. The Observer was extremely favourable to the Government. Lord Griffiths said that he thought that it was absolutely right that there should be a rule forbidding any member or ex-member of the service to publish any material relating to the service. He was on the Government's side. But he went on:theoretically, if a member of the service discovered that some iniquitous course of action was being pursued that was clearly detrimental to our national interest, and he was unable to persuade any senior members of his service or any member of the establishment, or the police, to do anything about it, then he should be relieved of his duty of confidence so that he could alert his fellow citizens to the impending danger".He argued for a public interest defence.
We may dismiss the decisions of all these Law Lords, but we are going to hear more about them in another place, and there is a very real chance, in view of the extraordinary level of cross-party interest in, and concern about, this matter, that they will put this provision back into the Bill and thus improve it. That will be the real test of this House and—dare I say it? —also the real test of Conservative Members of Parliament. Are they just going to throw that as well?
I know that this is not a simple question, and I say to the Home Secretary that I understand the difficulties on the question of the security and intelligence services. The right hon. Gentleman referred to the ABC case, as it was called. He said that he had been consulted by the then Attorney-General. He said that I too had been consulted, and that is so. The Attorney-General always made it very clear that it was his decision but that he would come and ask us about what the effect would be if some of this information in a court case came into the public domain.
I do not think that I breach too many secrets when I say that initially I was against prosecution in the ABC case. However, everybody came in and persuaded me that it would be terrible not to prosecute—people in the services whom I respected said so—and I eventually relented. But one of my reasons for doing so was that I was given an absolute promise that the case would be heard in camera. However, what happened, if my memory does not serve me badly, was that they managed to argue that it should not be heard in camera.
This is one of the problems, and if the Home Secretary is listening to this debate and is prepared to reconsider this case, I should like to put a suggestion to him. In a case that involves somebody designated under this Act, who is going to be granted a public interest defence, I personally would accept that that case should automatically be heard in camera. There are very great difficulties in open court in deploying the full arguments as to why one believes that it is not in the public interest for information to be put out. It is a fair point that what appears very minor information can, cumulatively, be very revealing.
We are dealing here with a very small category of people. I am not arguing that all cases should be held in camera; I would argue that in a vast number of cases a public interest defence should be heard in open court. I am dealing simply with the small group of people designated in the Act who at the moment have no provision for appeal, no public interest defence, no rights at all—people who are subject to automatic criminal action. Such were the very people who gave Winston Churchill information all through the 1930s. All those would have been 492 designated under this legislation. They would automatically have been adjudged to be taking criminal action if this had been the law of the land.
I believe that that would be a possibility for the Home Secretary. The Home Secretary has used the jury; he has gone away from ministerial designation. That, broadly, has been accepted. However, it would be possible to have a full court case, the jury making the decision, but to hold the proceedings in camera. Were that the case, some of the problems that arose in the ABC trial would be avoided.
It is very important that we get this law right. The paradox of this Government is that they talk about secrecy, yet we have had more actions and court cases than almost anywhere else. We have also had more revelations of real, genuine secrets than in any other period in our history. The paradox is that we know more about GCHQ and about the security and intelligence services, including some quite damaging information, because we have not had the right law—law that would have carried sufficient confidence. So it is important that we get it right.
The Home Secretary will say that he has made some changes, that we have welcomed, and I agree. Putting MI5 on a statutory basis was a sensible decision, and I supported the legislation, but the Home Secretary cannot carry all the House. On the question of public interest defence, he certainly is not carrying the House.
In the Green Paper that the Government produced, there was a certain element, in respect of public interest, suggesting that they were yet to be convinced. Some of us hoped that the Home Secretary was open-minded. My personal belief is that he is still somewhat open-minded about this. As I have said, a lot more will be heard about the matter in another place. My belief is that, if the public interest defence could be reintroduced in this Bill—the general one that we seek to put in the clause for the vast bulk of cases; possibly this suggestion that I am making about automatically hearing in camera cases involving security and intelligence and people who are designated under the Act—it would be not only a vast improvement but a confidence-building measure in this House and among a wider public, resulting in acceptance of some aspects of a Bill which does in fact, broaden information but is stricter in areas in which many of us accept that it ought to be stricter.
It is in that spirit that I hope the Home Secretary is listening. I hope he will let us know whether designation is or is not subject to judicial review. I hope the Minister of State will agree that he did say two different things.
§ Mr. Hattersley
Could the right hon. Gentleman also ask the Home Secretary exactly which clause in the Bill makes that more than a matter for his judgment and a legal necessity?
§ Dr. Owen
One thing that has certainly emerged from the earlier debate and from this debate is that we expect an amendment to come forward from the Government to make this clear beyond peradventure.
I am hoping also for a further amendment to be brought forth by the Government, possibly in another place, to deal with the public interest defence. It would do the reputation of the Home Secretary a great deal of good if he were to table such an amendment. What is much more important is that it would do the Government's reputation, and that of the Prime Minister, a great deal of good—and that is something they need at the moment. They would at least be showing that they are capable, occasionally, of listening.
§ Mr. Churchill (Davyhulme)
The right hon. Member for Plymouth, Devonport (Dr. Owen) has rightly said that we should look to the lessons of history. This has been echoed and re-echoed by hon. and right hon. Members in all parts of the House.
While I support the broad sweep of this Bill, I think that its sweep is too broad. In their determination to silence any other would-be Peter Wright, the Government are in danger of going rather too far. The fundamental premise behind their thinking is that the Government and the Government alone are the guardians of the national interest and that, perforce, anyone breaching security can only be acting against the national interest. Of course, it is the common weakness afflicting every Government, no matter what their political complexion, to equate Government interest with the national interest when history has shown time and again that that is not so.
I invite the Committee and my right hon. Friend the Home Secretary to consider a scenario in which a British Government might act against the national interest to the point that they are wittingly or unwittingly providing military assistance to a hostile power. If hon. Members considered that suggestion to be a far-fetched flight of fancy, I would not blame them, but they would be mistaken. To my certain knowledge, it has already happened. I am not referring to the period immediately before world war 2 referred to by the right hon. Member for Plymouth, Devonport and also mentioned with passion and eloquence by the right hon. Member for Blaenau Gwent (Mr. Foot). They referred to an incident in which highly classified intelligence was supplied to a certain prominent Back-Bench Member of this House.
I am referring to information which came into my hands in January 1977, following my appointment as an Opposition spokesman on defence. That information showed that the Labour Government of the day had given approval to one of our top electronics firms, Lucas Aerospace, to enter into a contract with the Soviet Government. That contract was signed on 22 December 1976 and was for the supply of advanced electronic equipment to improve the performance of the Kuznetsov NK144 jet engine which powered the TU-144 "Concordski". The Committee may feel that that was innocent enough, but when I pointed out that that engine—extended by 12 inches and uprated 10,000 lbs of thrust, from 45,000 lbs to 55,000 lbs—also powered the Soviet Backfire nuclear strike bomber, the gravity of what was afoot becomes apparent.
494 Thanks to an individual in the Ministry of Defence and a senior research scientist working for Plessey, I was able to obtain confirmation of the facts and to learn that while Lucas Aerospace was to supply a digital fuel control system for the Soviet engine, Plessey was to provide a variable geometry jet nozzle. The combination of those two pieces of equipment could have significantly extended the range and radius of action of the Backfire bomber, possibly to the point that it could strike the United States from Soviet bases.
At least one of the contracts involved pushing back the frontiers of science on behalf of the Soviet military machine. The senior research scientist who contacted me from Plessey begged me to do all in my power to ensure that the contracts were cancelled because in his judgment they constituted a clear threat to the security of Britain and of our allies. I made it my highest priority to do all in my power to secure the cancellation of those orders. None the less, despite questions and debates in the House and press articles and radio interviews, it took nine months before the contracts were cancelled and the Government of the day acknowledged that a serious error of judgment had been made.
It transpired that the contracts had been approved before the Government knew that the engine that powered the civil "Concordski" also powered the military Backfire. Evidently my telephone calls to the official in the Ministry of Defence were monitored, because soon afterwards I was cautioned by the then Secretary of State for Defence not to try to communicate further with the official concerned. I have no means of knowing what, if any, disciplinary action was instituted against that official. However, I know that a prosecution of that official or the senior research scientist at Plessey under the Official Secrets Act 1911 would have been unlikely to succeed because they could have claimed under section 2(1)(a) that their disclosure of secret information to a Member of Parliament was "in the national interest".
My right hon. Friend the Secretary of State has said that there is no national interest defence in the present legislation, but he is mistaken. Section 2(1)(a) states, in effect, that a person may be guilty of a misdemeanour if he communicates specified information to any person other than the person to whom he is authorised to communicate it or to a person to whom it isin the interests of the State his duty to communicate".That key premise and defence existed for people connected with my grandfather's case before the war, in the Duncan Sandys case and in the case to which I have just referred. There would have been a defence before a court of law and almost certainly a prosecution would have failed.
§ Mr. Aitken
I hope that my hon. Friend will accept this point, which will strengthen his argument and perhaps destroy further the inaccurate argument put forward by the Home Secretary. A Select Committee of this House sat in 1938 to deal with the Official Secrets Act 1911. Part of its findings were based on the evidence of a Clerk of the House, Sir Gilbert Campion. The report states that the Committeecould imagine circumstances in which it would, in the interests of the State, be the duty of a person having information to communicate it to an MP although he was not authorised to do so.495 The example to which my hon. Friend the Member for Davyhulme (Mr. Churchill) has referred seems to have been foreseen some 30 years earlier, thus confirming the existence of a public interest defence under the 1911 Act.
§ Mr. Churchill
I am obliged to my hon. Friend.
In the example that I have outlined, had this Bill been on the statute book the Labour Government could undoubtedly have shown that harm was done because the disclosure resulted in the cancellation of contracts between this country and the Soviet Government worth many millions of pounds. The Lucas Aerospace contract was valued at £10 million. I do not know the value of the Plessey contract.
§ Mr. Baldry
If my hon. Friend wants to make that assertion, he should look at clause 2 and tell us where the Ministry of Defence or the prosecution could have shown that the case history that he has outlined would have prejudiced the capability of any part of the armed forces to carry out their task? Nowhere in clause 2 does it state that the loss of a contract comes within the context of a damaging disclosure.
§ Mr. Churchill
If one of the people who had been conveying information to me had been a designated person, it would have been an absolute offence under the Bill. The defendants in the case that I have outlined could no longer claim that they had communicated information to a person defined in the 1911 Act asto whom it is in the interest of the State his duty to communicate".It disturbs me that under this Bill those people acting solely out of patriotism—few hon. Members would dispute the patriotism of the two individuals to whom I have referred—by imparting information about the Soviet contract could be held to be guilty of a criminal offence and liable to a two-year prison sentence. The fact that they acted in the national interest would be no defence. Is that really what my right hon. Friend and the Government have in mind? I find that quite impossible to believe.
Most worrying of all, if the Bill is passed unamended, is the damage that it will do to the privileges of the House as accepted during the past 75 years, and the rights of individuals in certain circumstances to communicate classified information to Members of Parliament without fear of prosecution, provided that they can show that the disclosure was in the interests of the state.
§ Mr. Terry Dicks (Hayes and Harlington)
My hon. Friend must excuse me because, unlike him, I am not an expert in these matters, but is the logic of his argument that, if the Bill had been in force before the war, the appeasers would have gone free and Vansittart would have ended up in jail?
§ Mr. Churchill
My hon. Friend must forgive me. I am not dealing with the period before the war—I am dealing with a specific case of which I have personal experience. The way in which that case would almost certainly have been handled under the Bill, were it to be passed unamended, gives grounds for serious concern. It is a clear deficiency in the Bill that there is no national interest defence and I ask my right hon. Friend to consider the 496 matter afresh in the light of the facts that I and other right hon. and hon. Members have put before the Committee today.
The Government have a responsibility to produce legislation on this vital issue that will stand the test of time and not legislation designed to slam the door on the horse that has most recently bolted from the stables. If my right hon. Friend is not minded to accept new clause 4 proposed by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), at least let him bring forward his own national interest amendment.
§ Mr. Rooker
On a point of order, Miss Boothroyd. I apologise sincerely to you, to the House and to my right hon. and learned Friend the Member for Warley, West (Mr. Archer), but may I ask you to reflect on something while my right hon. and learned Friend makes his speech? This important and crucial debate has been going on for more than four hours. In contemplating whom to call when my right hon. and learned Friend sits down, might it be a good idea to call someone who will speak in favour of the Bill, as so far only the Home Secretary has spoken in favour of it.
§ The Second Deputy Chairman of Ways and Means (Miss Betty Boothroyd)
Order. I can deal with that point of order. I am not aware who is in favour or not in favour of the Bill. I call those hon. Members who rise, and I shall continue to do so.
§ Mr. Spearing
Further to that point of order, Miss Boothroyd. I apologise to my right hon. and learned Friend the Member for Warley, West (Mr. Archer), but the matter is of some importance. My right hon. and learned Friend who is about to speak has been a Law Officer of the Crown, a solicitor and not a barrister—[HON. MEMBERS: "He is a barrister."]—but not an Attorney-General. I can espy no one on the Treasury Bench representing the Crown. I know that the matter has been raised before, but my right hon. and learned Friend will be asking searching questions which understandably the Home Secretary is not equipped to answer. Is there some procedure whereby we can have a dilatory motion until a person equipped to answer those points can be brought to the House?
The Second Deputy Chairman
I was almost one jump ahead of the hon. Gentleman. That is not a matter for the Chair. It is a matter for the Government and not for me. Mr. Archer.
§ Mr. Archer
It may set my hon. Friend's mind at rest if I tell him that the searching questions that I had in mind to ask have already been asked. I hope that the Government work sufficiently effectively for the Law Officers already to know that they have been asked. As to the matter which my hon. Friend the Member for Birmingham, Perry Barr (Mr. Rooker) invited you, Miss Boothroyd, to reflect, you might reflect on it, but I hope that at least half your mind will be on the argument that I am seeking to adduce.
If the purpose of the speech by the hon. Member for Davyhulme (Mr. Churchill) was to point out that Governments do not always act in the best interests either of the public or of the nation, if there is a distinction, either 497 through malice or by mistake, I wholly agree with him. However, this is a serious debate and our main theme would not be enhanced if I were to enter into the dramatic details of the particular example which he gave. Whoever is in government, there is a consensus in the House that it is not the same thing to talk about the interests of Government and the interests of the nation.
I appreciate that the Second Reading debate is over, but it is worth reflecting for a moment on the background against which the debate is taking place. We are debating the circumstances in which someone may be prosecuted and punished as a criminal for revealing information. The vast majority of common law jurisdictions, and many other jurisdictions as well, have a law which imposes on Government a requirement to make that information available. Their courts debate whether Governments should be entitled to refuse information.
That impressed itself on me when I was looking to see whether courts in other countries had experienced, difficulty in deciding where public interest lies. They have not. There are cases enough about the public interest, but in Australia, Canada and most common law jurisdictions, public interest cases are about when the Government may refuse a disclosure of information. The public interest provision that we are discussing is about the circumstances in which, exceptionally, someone may tell the public without being sent to prison. So we are discussing the exceptions to the duty to conceal, while they are discussing the exceptions to the duty to reveal.
It must be common ground that there have been occasions when misdeeds of those in government ought to be revealed and that it would have been wrong had they not been revealed. Unhappily, we still do not know whether Richard III murdered the princes, but if he did, and had that become public knowledge, would anyone argue that that would have been other than in the public interest? Of course it might have been damaging to the nation's armaments because the battle of Bosworth would have taken place earlier. Would not the world have been a nastier and dirtier place if Watergate had not come to light?
There have been a number of interventions on whether the public interest coincides with the interests of the Government. One of the historical foundations of the privilege of the House, which Mr. Speaker claims on our behalf, was the case of Sir Thomas Haxey in 1397. Sir Thomas was a senior official in the service of Richard II, and he asked the House of Commons to discuss a remonstrance against some of the King's practices. The King obtained from the House the name of the whistle-blower, and persuaded the other place to rule that it was treason to seek to remedy anything pertaining to his person, rule, or royalty. Sir Thomas was condemned as a traitor. But the House took the view that what he had done was in the public interest, although I do not think that it used those precise words, and history has vindicated him as one of the pioneers of our constitution. Even the King decided that it was unwise to pursue a whistleblower when what he had revealed was already in the public domain, so Sir Thomas was pardoned and restored to his former position. I sometimes think that it is a pity that the present Cabinet are such bad historians.
Of course there have been Government secrets which would have been better not disclosed. Those who disclosed 498 them were at best misguided and at worst wicked. In the early 15th century, the House secured a promise from Henry IV not to listen to any of the leaks about proceedings in the House until the debate had finished and the House had reached a conclusion.
Of course, there have been times when the public's right to know has been invoked in the interest of nothing more edifying than a thirst for scandal or a profitable market in tittle tattle, but that is just the case for the new clauses and amendments. That is why we need some way of distinguishing between the two categories, and the Bill does not provide it. It simply says that, for certain categories of offence, the prosecution must prove that some harm resulted. It does not say—the Secretary of State did not show a clear realisation of this—that anyone shall be entitled to balance that harm against the good that might follow, however great the good. Under clause 1, there is not even a requirement that any harm should be established. The argument appears to be that, when security information is divulged, some harm is bound to follow.
It does not require the imagination of a John Le Carré to envisage circumstances in which the public benefit that follows a disclosure is out of all proportion to the harm caused. We have heard many such examples this evening. Suppose it came to the knowledge of a member of the security services that a vast installation contained chemicals, explosives or nuclear material that was unstable and capable of causing a public disaster. Could it possibly be said that the harm to the security services or defences arising from revealing that information was in any proportion to the benefits of causing that danger to be removed? When Ibsen wrote "An Enemy of the People" he clearly invited his audience to conclude that the enemy of the people was not the man trying to alert them to the danger. To invoke the harm that would follow a disclosure would be a fig leaf to cover a great obscenity.
If it is said that my example is far-fetched and that Ibsen was not introducing realism to the stage, I pose this question. If, before the Watergate disclosure, anyone had written a play using its facts as the plot, a Minister would have said that it was too far-fetched to be taken seriously. A jury that has heard the evidence—the merits of the case properly argued by both sides—and has been properly directed by the judge is eminently capable of weighing that balance.
My hon. Friend the Member for Perry Barr (Mr. Rooker) said that no speeches had been made supporting the Secretary of State, and that speaks for itself. However, I had expected one argument to be made and it was the only consideration which at one point caused me to hesitate. A person who is in the dilemma that we are discussing—who is asking whether it is his duty to maintain confidentiality or expose inequity—would have to make a judgment without knowing the view that a jury might take. He may say, "I must exercise my judgment in good faith but find subsequently that I have committed a criminal offence because the jury takes a different view." He would be better protected if there were some way of resolving that issue before he made the disclosure and before a prosecution followed.
We are dealing, ex hypothesi, with officials who have exhausted the system's channels. Any further oracles would have been part of the service, part of the culture of confidentiality, would probably be drawn from the ranks of the establishment and be motivated by the same 499 secretive culture. My right hon. Friend the Member for Morley and Leeds, South (Mr. Rees) spoke of the "next man up", and we all know examples of the "next man up." We know what happened to Fletcher Christian after he mutinied on the Bounty. The Admiralty did not support the subordinate who took over from his superior, and we have a further fictional example in "The Caine Mutiny". The difficulty is that no sieve is provided prior to disclosure and prosecution. If the Home Secretary introduced a solution along those lines, some of us might be prepared to consider a settlement.
§ Mr. Dalyell
Might not the dilemma of Fletcher Christian have applied to Sir Ewen Broadbent and Sir Frank Cooper, had Clive Ponting gone to them?
§ Mr. Archer
My hon. Friend poses a fascinating question on which one is tempted to speculate. Sir Frank Cooper was one of the signatories to the letter we have been debating. I am not sure that what one does in concrete circumstances and when standing aside and writing to The Times are the same. I am not sure that I would recommend three wise Privy Councillors. I am inviting the Secretary of State to consider an alternative solution if he thinks that it might be preferable to some of those that we are debating.
§ Mr. Spearing
Would not the dilemma facing any of the gentlemen mentioned by my hon. Friend the Member for Linlithgow (Mr. Dalyell) be greater because the document leaked in the Ponting case questioned the validity of the joint position that had been reached by all parts of government? Surely that would have put them, according to the principle of "next man up", in an impossible position?
§ Mr. Archer
The woman may have been part of the agreement. We must hand the problem to the courts and to a jury properly directed. A decision must be made expost facto.
Hon. Members who are not drawn to a public interest defence would have the comfort of knowing that anyone who is in a dilemma and is inclined to believe that his or her duty requires disclosure will be a potential martyr because he or she cannot be sure what will happen. But the possibility that a person with an irrepressible conscience will be labelled an enemy of the people is better than the certainty, and that is the case for the amendment and new clauses. The fact that a jury will have power to decide—we hope by applying the same common sense standards as the person in the dilemma—may help to sustain a future Sir Thomas Haxey.
§ Mr. Gary Waller (Keighley)
The right hon. and learned Gentleman referred to the fact that it could not be certain in advance how a jury would decide. Is not the difficulty that if one asked any 12 people their definition of the national or public interest one would receive a completely different answer from that which one received from another 12. It would be unsatisfactory if the public interest, which can be determined in many different ways by many different people, were the issue at stake.
§ Mr. Archer
The jury in the Ponting case retired for only a short time before it returned with a unanimous verdict. I am wholly in favour of the jury system and have been amazed at how well it has worked in these cases, from the seven bishops case down.
It is important that someone, at some stage, should be able to make these judgments. We must not remove from anybody the power to make such judgments and say, "There will be no defence and no one will have the authority to vindicate you." That would be completely unacceptable.
§ Sir Ian Lloyd (Havant)
In my judgment, the public interest is the obverse of the portcullis, which is the proud badge of Parliament. Neither Government nor Parliament is the sole custodian, but they are both major custodians of the public interest.
The Government of the day, however it may be drawn from the House, must always be the trustee of the public interest. The discharge of trust, and the conduct of that trust, must always be subject to a broad, continuing and on-going examination inside and outside the House. As I understand it, that is the definition of democracy. It is defined in the House by the width of the carpet between us. Sometimes the width is an enormous gulf, but at other times it is narrow indeed. I suggest that this evening it is very narrow.
Nonetheless, the Government are entitled not to be humiliated by those who serve them, and that is where the difficulty begins. In imposing the necessary disciplines on their servants, the Government must define carefully, and often in the greatest detail, precisely what the measures and limits of that discipline are. As several right hon. and hon. Members have said, in distinguished speeches, the moment that they extend that definition into the area of public interest, the greatest difficulties arise.
It was my privilege, as a very amateur historian, to deal with a case that is highly relevant to the debate. I propose to put the case before the House because my decision on whether to support the Bill will depend on the answer that I receive from my hon. Friend the Minister of State about the case. In 1941, our tanks were performing extremely badly in the western desert. They were outgunned, under armoured and too slow and they were being shot up and destroyed by the Germans on a distressingly large scale. Our tanks were no match for the 88 mm guns, whether mobile or fixed. That must have been known to the commanders concerned and to everyone up to the general staff, but nothing appeared to be done and, from my analysis of the records, very little was being done.
A Captain Scott in one of the armoured regiments decided that the only action to take was to write to his father, who happened to be Lord Herbert Scott, the chairman of Rolls-Royce. I have seen the letter and it described the appalling situation in the desert. He said to his father, in so many words, "For God's sake, do something." Lord Herbert Scott was in the position of being able to inject an important urgency and rethinking into tank production, performance and design. I have no doubt—and Captain Scott had no doubt—that he was in breach of the Official Secrets Act 1911, and his father was in no doubt of that either.
But from what I have heard earlier, it seems that the position is this. Captain Scott should have gone through 501 the usual channels: first his commanding officer, then his brigadier, then his divisional commander, then his corps commander, then his commander-in-chief in the middle east, General Wavell, then the chief of the Imperial General Staff and finally the War Cabinet. In reality, how far would he have got? How far would his message have got?
§ Mr. Hind
If my hon. Friend thinks carefully about what he has just said—and I am sure that we all commend the courageous action of Captain Scott—he will realise that Captain Scott would not have committed an offence under the Bill, for the simple reason that the harm that would have come from his disclosure would have been nil. In fact, his disclosure would have been beneficial to the country. The point that my hon. Friend has missed is that the pillar of the Bill is what harm comes from a disclosure.
§ Sir Ian Lloyd
All I can say is that the possible harm of disclosure from a means more public than that of a private letter would have been that the Germans would have learnt what our position was far sooner than they would have done from their military experience.
§ Mr. Buchan
I was in a tank regiment in the 8th Army. We said that if we saw an 88 mm. we were dead. That was the difference between the two weapons. The other problem was that if any other rank had written the letter, it would never have reached the end of the line. Many deaths had already resulted.
§ Sir Ian Lloyd
I am obliged to the hon. Member, who speaks from great personal experience, which I certainly do not have. I am merely reporting the facts as an amateur historian. What happened was that as a result of the highly private, unofficial and irregular intervention, the tanks that we produced and which went into action on D-Day in 1944 were significantly better than the tanks in the western desert. I have no doubt that, had Captain Scott's action been known to the military authorities, he would have been court-martialled.
It seems ludicrous to argue that in all such cases, the official channels must be used to the ultimate limit before any other action is taken. Under the provisions of the Bill, would Captain Scott be prosecuted or would he have a defence in the public interest? If he would have such a defence under the Bill, I would support it. If he would have no defence, I cannot support it. I believe that there will be other circumstances in other times when other Captain Scotts will have to take courageous decisions similar to those referred to by my hon. Friend the Member for Davyhulme (Mr. Churchill) when his distinguished grandfather acted as he did because of inside information in the 1930s. If we rule out such occasions by definition and put such a weight on the exercise of courage that it becomes impossible, we shall not be acting in the public interest and the Government will not be either.
§ Mr. Heffer
Under the provisions of the Bill, Captain Scott would obviously have been in some difficulty and so too would the gentleman to whom the hon. Member for Davyhulme (Mr. Churchill) was referring. So too would those who gave valuable information to his grandfather. That is the point of the amendment and the arguments against the Bill. The right hon. Member for Old Bexley and Sidcup (Mr. Heath) made that point clearly when he said that someone who is not of the lowest levels in the Civil Service may see something with which he or she does not 502 agree, become upset and go right through the channels to the Minister. The Minister may say, "Well, keep it quiet and don't tell the press anything about it." That person may go back later and be told, "It's all right, you've no need to worry, because it's all being dealt with." Three months later, that person may discover that nothing has happened that his or her views have not been taken into consideration, that there has been no change. He may feel passionately about it, but what can he do?
It is true that nothing could be done under the present Act, but nothing can be done under the Bill either. Such a person cannot resign and make a statement. Anyone who has been a Minister can have an argument and resign—or in my case, get kicked out. He can make a speech in the House explaining his point of view, but civil servants will not be in a position to give a press conference. If they do, under the provisions of the Bill, they will immediately be in trouble and they will have no real defence. They already know the terms of the Bill and they are in real trouble.
The problem does not concern only military equipment. That is important, but the Bill raises other questions, and of course, people have different views about what is in the public interest. That is a serious problem.
Take the example of a practising Roman Catholic—indeed, somebody practising any religion. What is that person supposed to do if his bishops issue a statement on something? The American bishops issued a pastoral letter to their national conference, entitled "The Challenge of Peace". Paragraph 147, on page 46, says:Under no circumstances may nuclear weapons or other instruments of mass slaughter be used for the purpose of destroying population centres or other predominantly civilian targets.Paragraph 150, on page 47, says:We do not perceive any situation in which the deliberate initiation of nuclear warfare, on however restricted a scale, can be morally justified.
Suppose that a Catholic member of the Civil Service, who had not thought much about the question, received that pastoral letter and thought, "That's right. It is a matter of conscience." I am giving an extreme example because I think it important to do so, but one could give other examples.
That civil servant may discover that someone is about to initiate the use of nuclear weapons. What is he to do? Under the Bill he would have to keep quiet. His conscience might tell him that he had to speak out, in which case he would be in immediate trouble under the Bill. That is the whole point. One cannot stop people having a conscience or feeling so concerned about something that they have to make a stand.
If I remember rightly, the Home Secretary himself said that he did not think that, in the last analysis, fear of criminal action would stop people. Of course it will not. I could not. In the end, a person will make that statement irrespective of whether it is criminal to do so, and will suffer the consequences. We should at least give people the opportunity of some defence—the defence that they consider that what they have done is in the public interest. Others may not agree with them, and they may end up on the receiving end, but people who feel strongly should have the right to argue the public interest defence.
No real action was taken against any of those who argued that there should have been better equipment arid aircraft, and rearmament, to offset the growth of German 503 weapons under Hitler. Thank God they did that. We were in trouble as it was, and we should have been in much greater trouble if civil servants had not taken that view.
I know that other hon. Members want to speak and I know that it is nice when one has sat here all day to think, "Now that I am at last on my feet I shall go on as long as I want." I shall not do that; I shall restrict myself to a few points.
I wish that we were discussing a freedom of information Act, which would be far more useful to the people of this country than this Bill. The right hon. Member for Old Bexley and Sidcup made an excellent speech, but I did not agree with him that the Bill improves matters. I cannot see how it does. It may improve minor details here and there but in some respects it has made matters worse, and that cannot be acceptable.
It would be a good thing if we had a freedom of information Act. Look what happens in the United States. The list of defectors from the CIA is getting longer and longer. They all go on television and write books and newspaper articles. The effect of that has been that the American people are much more careful and much more concerned about the CIA. They look more closely at what the CIA does in other countries, although they could look closer still. Take the case of Oliver North: how could all that have come out, with secrecy laws like ours?
§ Mr. Heffer
Precisely; it could not. We have to look at the American example. I think that hon. Friends will agree that I am not in love with the American system and American politics. I do not like the Americans' unbridled capitalism, but that is another matter. One cannot say that their legislation is not vastly superior to ours in some respects. There are two British examples. How did we find out that we had agreed to the manufacture of the bomb? We learned years afterwards. We had a Labour Prime Minister at the time. How did we learn about Chevaline? Again, it was a long time afterwards. Everybody said, "It was done in our name but there were no debates or discussions" Why not? Why should not people know about these things?
I am cutting my speech considerably, but I want to conclude by quoting what is unfortunately a somewhat lengthy statement from a book called "The Second Oldest Profession" by a man called Knightley. It is a very interesting book, and the last page sums up the position:So in the mid-1980s we are faced with an intelligence community which has grown to a size and power which is unprecedented. It is so big and so expensive that we can only guess at its size and cost. But there is no doubt about its power. In the Soviet Union national leaders come from its ranks. In the United States its influence on presidential decisions is such that it is sometimes difficult to decide whether the President is running the CIA, or the CIA is running the President …There might, just might, be some justification for the intelligence community if it did what it claimed to do: provide timely warnings of threats to national existence. But, as we have seen, this claim is exaggerated even in wartime and, in peacetime, intelligence agencies seem to have spent more time trying to score off each other, protecting their budgets and their establishments, and inventing new justifications for their existence, than in gathering intelligence.504Perhaps this is because—when not deep in their fantasy world—the intelligence community knows that open, published information, and that obtained through traditional diplomatic and other overt contacts, have proved this century by far the most useful source of military, political and economic intelligence for both sides.
I shall end on that note, because that is what we should be talking about. Meanwhile, we can at least support the excellent amendment tabled by my hon. and right hon. Friends on the Front Bench.
§ Mr. Hugh Dykes (Harrow, East)
On a point of order, Miss Boothroyd. Forgive me for raising a point of order at this stage. It is not meant to offend you, in the Chair, or other hon. Members. You will be well aware that certain hon. Members have been waiting to make a contribution in this debate for nearly five hours and I believe that other hon. Members have arrived more recently.
The Second Deputy Chairman
The hon. Member is always very courteous to the Chair. I am sure that he will understand that calling a Member is at the Chair's discretion. I really am doing the best I can to be as fair as possible in a very difficult debate where so many hon. Members are seeking to speak.
§ Mr. Wheeler
I hesitate to enter into the whirlpool of this debate, for many of us have indeed been here for well over five hours, listening to most complicated but important arguments on the new clauses. Those of us who have been here from the outset will agree that those who have spoken thus far have spoken from a position of great worthiness and a desire to see the law right.
So far, my right hon. Friend's proposals have been almost friendless. I at least intend to speak in support of the Government, if only to show that, from all this ebb and flow, the Government offer the Committee certainty in the law, and that is the one principle to be gained from this Bill. The plain truth is that, if we accept either new clause 1 or new clause 4 we shall virtually wreck the Bill. Both are effectively wrecking clauses. They may not be intended deliberately so to do by the whole Committee, but that will be the outcome of supporting them.
In essence, my right hon. Friend suggests that the criminal law should define the offence with certainty. The law should be concerned with the actions of an individual rather than motive. That has been the essence of our debate. New clauses 1 and 4 include phrases such as "reasonable cause to believe" andexistence of crime, fraud, abuse of authority, neglect in the performance of official duty or other misconduct".That is a catch-all phrase.
The trouble with these phrases in the new clauses is that they are vague and ambiguous. They will import uncertainty into the law if the Committee passes them, whereas my right hon. Friend seeks courageously to reform section 2 of the Act, to restrict it severely and to impose upon the prosecution tests of harm, which are provided for five of the six categories.
I shall dwell on the test of harm for just a moment. I heard several hours ago, although I hope that I was deceived—the phrase "balance of harm". This is nothing to do with the balance of harm. It is to do with the test of harm, which the prosecution would have to prove unambiguously before a jury. As we have gone through the past five hours, we have lost sight of the integrity that my 505 right hon. Friend brought to the proposals. He is saying that the prosecution will have to prove its case before a jury, which is a formidable test. More than 50 per cent. of cases tried before a jury in London today in which there is a "not guilty" plea result in an acquittal. The fact is that some fanciful suggestions from hon. Members have been to the extreme of credibility, including the notion that the Crown prosecutor or the Director of Public Prosecutions would embark on a prosecution in such cases.
§ Mr. Gorst
May I put this suggestion to my hon. Friend in a slightly fanciful but nonetheless helpful way to show why I believe him to be wrong?
We are elected to the House to perform a function based upon trying to do something in the public interest. If we were to he judged at the end of the day on how much harm we had done, we would have got the balance of philosophy wrong. The same could be said about this piece of legislation. My hon. Friend is absolutely wrong to say that it is important to judge whether harm has been done. We ought to judge whether the matter has been dealt with according to the public interest. After all, if we were to judge whether a bank robber had done more or less harm in his crime where would that lead us?
§ Mr. Wheeler
My hon. Friend is reversing the arguments of the past five and a half hours. He has really put forward a plea in mitigation. While we could go down the road proposed by right my hon. Friend and aim for certainty in the law, the defence could advance the argument in mitigation before a jury to justify what had been done to break the law. It would rest upon the jury whether they wished to believe that.
I would say to my hon. Friend, as we have gone round this subject for many hours, and there is little more that is new to be said about it, that one cannot persuade a British jury to convict anyone if they do not want to. My right hon. Friend the Home Secretary is proposing to trust the jury.
§ 9 pm
§ Mr. Buchan
I have waited a long time to try to deal with some of the points that have now been encapsulated by the hon. Member for Westminster, North (Mr. Wheeler). He exactly exemplified the Government's wrong-headed attitude in this case. I hope that they welcome him as an ally. He has at least been consistent in stating the argument. He talked about certainty in the law. But our view of the law was certainly exonerated by the Ponting trial. Twelve out of 12 jurors said that the law was an ass and should be rejected. They knew that he was technically guilty within the law, and they rejected it.
Throughout the "Spycatcher" case and the series of judgments on it and from what was said by the Government, we thought that this antiquated law, which proved to be an ass, would be swept out and something intelligent, sensible and rational would be put in its place. Instead we have a cheat of a Bill which claims to be a reform. If anything, it has made the situation worse. It introduces the spurious concept of harm, allowing juries to think that they are getting some kind of balanced argument as opposed to the ass that was made of the previous one. It has introduced a series of absolutes which would declare everyone who would have been exonerated by the intelligent behaviour of the Ponting jury now automatically guilty.
506 Their argument is wrong. The hon. Gentleman's technical argument in accusing the amendments of being wrecking amendments is also wrong. They are far from wrecking amendments. Public interest is essential if we are to have security legislation that can be acceptable in any democracy.
It was said that the Colonel North case would not have occurred in this country. That is quite true. If an Irangate had developed in this country, the case would never have been prosecuted—certainly not in front of cameras and not in a court. The honest whistleblower would have found it almost impossible to come forward. That is one of the problems. Far from being wrecking amendments, these are the only kind of amendments that will ensure that the law which is about to be passed can be at all acceptable.
The hon. Member for Westminster, North asked how the disclosure or retention of information or an article was in the public interest in that someone had reasonable cause to believe. Much fun has been made of the phrase "reasonable cause to believe." Much of English law—I specify English law, not Scottish law—depends on the assumptions to be made by a reasonable person.
§ Mr. Buchan
The hon. Gentleman shakes his head. A Daniel has come to judgment. An hour ago, he was squealing about that point.
§ Mr. Hind
The hon. Gentleman is correct. Much English law is based on the reasonable man principle, but a jury will look not at what was done and the harm that resulted from disclosure but purely and simply at what the person who made the disclosure believed to he the situation. That is not dealing with the problems that the Bill sets out to correct.
§ Mr. Buchan
That is precisely the reference to the reasonable person in English law. The hon. Gentleman has got it wrong again. That person will not necessarily be found innocent. He will have to prove that he had reasonable cause, not that he imagined that he had reasonable cause. [Interruption.] He will have to prove that he had reasonable cause to believe. He will have to bring forward the objective factors on which he based his belief.
Far from being neglected, that argument was brought up in a curious way in regard to the obscenity legislation. A jury had to decide whether a reasonable man would consider whether a certain act of obscenity could cause gross offence to others. The reasonable cause to believe principle is perfectly sensible and right, although not in that case. It is the only way in which a man who after all cannot prove that he is not guilty until he is brought to court can then prove it.
Every case that is brought forward is based on reasonable cause to believe, or there would be no trials. The point of jury trial or any other trial is to decide whether there was reasonable cause to believe that X happened. That is the basis of law. I wish that Conservative Members would grow up.
The Home Secretary said that there has been no such public interest proposition in law before. He is wrong. He is wrong even about the Act he seeks to amend. If there had been no public interest case, Ponting's defence would have nothing to argue, but there was a glimmer of public interest.
507 Section 2 of the 1911 Act refers to the interest of the state. That is to be wiped out. There is no clause to allow the interest of the state to be pleaded. The Ponting case was concerned with whether the interest of the state was the interest of the Government of the day. But it was in the Act. The Home Secretary is talking nonsense when he says that it is no defence to any charge that the long-term effect of the criminal act was beneficial and that that benefit outweighs the harm done. That is not totally our argument but let us accept it for the moment. The Home Secretary is wrong. It was in the obscenity legislation and even in the Act which he seeks to replace.
In the "Spycatcher" judgment Lord Griffiths ruled that if a serious iniquity arose, which could not be stopped by complaints to the authorities, an official should be relieved of his duty of confidence so that he could alert his fellow citizens to the impending danger. Lord Griffiths said that if iniquity was being committed and if there was no other means by which it could be stopped, because complaints were not being listened to, an official had no other means of action if he had reasonable cause to believe that there was danger. His duty of confidentiality should be suspended so that he could alert his fellow citizens. So their lordships were saying that it was not only proper that this should happen but that it was a duty.
Some of the historical cases rehearsed today have proved the occasional necessity for the honest whistleblower. It was the honest whistleblowers leaking like hell to Churchill throughout the 1930s who began to alert the country to the serious mess it was in. One reason why such people were not charged was that if they had been brought to public trial it might have alerted the whole country to the truths which were being concealed by the Government of the day. Some Conservative Members failed to understand that point today. There may be a width of carpet between us but it is not a carpet under which we can sweep honest arguments.
Even the amendments which we are putting forward cannot always deal with the problems. I was touched by the case referred to by the hon. Member for Havant (Sir I. Lloyd) of the man Scott who wrote to his father in England about the weakness of the guns. I was in the 8th Army and, as I said in an intervention, we had a common saying that if a man saw an 88 he was dead because it shot faster and more accurately. We had 75s, which were useless against 88s. I had one tank commander who lost three tanks in one day at Sidi Rezegh. If a private or a corporal had said what Scott did, he would have been in gaol.
The old boys' network has helped the honest whistleblower. It was easier for Churchill, Vansittart and others. It was not so easy for the honest whistleblower in the lower ranks. It is one thing in a country which has the safety of the old pals' network; it is another when we have larger numbers of civil servants than ever before and papers go further down. It is no longer a case of simply dropping into the Athenaeum and saying, "Look here, old boy, this is what they are up to." It is ever more dangerous and difficult.
Even their Lordships failed to understand. Many civil servants, coming across iniquity, are terrified to raise it with the next in command. He, too, is terrified to raise it further up. There has to be some means by which the 508 iniquities of Government can be explored. This is not to exonerate the dishonest whistleblower or to encourage the continual leaking of information.
Most of the information which is leaked is not secret. Modern technological surveillance is the important thing. The old-fashioned spy might have mattered, but it is not so serious now. A new development does not take place out of the head of Gallileo when he remembers the imaginary story of the lamp moving in the cathedral of Pisa. It arises because of the exchange of technology throughout the world and a new technical development here or there.
Developments take place through the interchange of scientists. I speak of Erickson in Edinburgh. One week he is lecturing on nuclear strategy to scientists, engineers and generals in Washington. The next week he is in Moscow lecturing about what the generals in Washington are saying. Satellites do the job.
What happens in the kind of balance adumbrated by the Secretary of State—I fear slightly dishonestly, because he is bright enough to know what this Bill does—to the people on the Clyde estuary. What will happen on the Clyde, where we have to consider the well-being of people living near to a nuclear base? What happens if there is a radiation leakage and it is not disclosed?
I have a letter that refers to somebody further down the ranks and, frankly, I am not sure how to use it. I shall send it privately to a Minister. I hope that now I have mentioned this man in the House, he will receive some protection. He talks in his letter about a radiation leak. He served for 13 years on the Polaris submarines. The authorities have denied it, but he claims that, one way or another, he has seen his medical records in which it is referred to. He cannot, however, get the Government to disclose those records to him. If he were an admiral, all hell would be let loose until he acquired his medical records. If another leakage, this time of information about the first leakage of radiation occurs in the Clyde nuclear base, it will harm the defence of the State, under clause 2, on two counts. It will harm our relationship internationally, because other countries will ask, "What has happened? Is there a weakness in the British defence and American bases?" It will also harm the people who live on Clydeside.
If someone leaks information about a radiation leakage and gets charged for so doing, the argument under clause 2 will be that it will harm defence. It prejudices the capability of and it jeopardises the interests of defence. We will have been told that we have certain inadequacies in our defence.
Clause 3 deals with confidential information obtained from a state other than the United Kingdom which does harm to the state.
The only way to decide that the man who I mentioned had an honest reason to believe that his information should be exposed is to bring the matter to trial. If that ingredient is missing, he has no chance.
I had hoped that we would have received a response from the Home Secretary.
I feel that I should give some reason for my interest in this as I am not especially concerned with problems of secrecy. Other hon. Members know much more about it than I. My hon. Friend the Member for Linlithgow (Mr. Dalyell) is an expert on the matter. I have been pulled into this question of secrecy because I have a vital interest in another matter, which I call the freedom of the word. I have been concerned over the years that not only is secrecy at the top getting more powerful and rigid, but that the 509 inability to have freedom in this area is mirrored by what I see happening to the freedom of expression elsewhere. When three people in Britain—Maxwell, Stevens and Murdoch—control more than 80 per cent. of the popular press, freedom is in danger.
At one time the grandfather of the hon. Member for Thanet, South (Mr. Aitken) had the Daily Express, which was both a popular and a serious paper. It had the best foreign correspondent in Britain, Sefton Delmer. The paper was pursuing the interests and views of Lord Beaverbrook, but serious propositions were being put forward. It was a paper that mattered. Foreign affairs were on the front page. Alongside it was the Daily Mirror, iconoclastic, Left-wing and radical. How different now. If no one sees the danger to freedom, understanding and knowledge, when three people control more than 80 per cent. of the press, they must be dead to the world.
At the same time the Government are slashing public service broadcasting and passing television and radio across to the private sector. We have broadcasting in this country under the same man who introduces Secrecy Bills such as this. So much for freedom of the word in this country; the man who is supposed to be in charge of broadcasting and defending freedom of the word is the same man who allows the special branch to invade the Scottish BBC. This is a strange situation, a dangerous situation. What is happening under his White Paper which is to be debated next week is that public service broadcasting is being passed across to the same people who own and possess the newspapers. Those three newspaper magnates are going to take over satellite broadcasting, too.
This is what concerns me. I see it in the arts in which I am concerned. Public sponsorship is lower and lower in proportion and private commercial sponsorship is increasing. Ibsen's plays are classics and can be seen in the National Theatre, but it is not quite so easy for a contemporary Ibsen to write a play such as "An Enemy of the People". It is not so easy for the contemporary film maker to raise the necessary money to expose the enemies of the people as Ibsen did. If hon. Members laugh it is because they do not begin to understand what is happening in this country.
It is alongside this that we are worried when we see Bills of this kind. We should be opening up understanding and access to information, instead of which we are closing and clamping it down.
At one period in history we depended upon the sovereignty of Parliament to defend and expand our liberty. That sovereignty of Parliament, as my hon. Friend the Member for Newham, South (Mr. Spearing) has pointed out to me on more than one occasion, has now degenerated to the sovereignty of the Executive, and the sovereignty of the Executive has further degenerated to the sovereignty of the Prime Minister. We have a Prime Minister buttressed by the press being in the hands of three people, and an Executive buttressing her position by this kind of secrecy Bill.
That is why we would welcome even the most minor of amendments to this Bill to allow some kind of concept of public interest to be involved, so that the honest whistleblower observing an iniquity within what I regard as an iniquitous Government can honestly declare it and be exonerated if he proves his case.
§ Mr. Dykes
The hon. Member for Paisley, South (Mr. Buchan) as usual, went a little over the top, to say the least, but he is a very articulate, fluent speaker and he said much with which I agree—and at least he has been here since the beginning of the debate. I was both amused and distressed when my hon. Friend the Member for Westminster, North (Mr. Wheeler) made an admittedly very brief intervention and left a few minutes later when the hon. Member for Paisley, South had started speaking. My hon. Friend is the very distinguished Chairman of the Select Committee on Home Affairs, and I understand that, but I am sorry that he was not able to be here longer because he referred whimsically to the five hours that we have had on this debate already. [Interruption.] It is true that he had been here earlier, but I have been waiting since the beginning of the debate, and some of my hon. Friends have not been here so long.
I intend to be brief, but I think that these points have to be made. Hon. Members on both sides who have been here all the time have with great force, and almost without exception, pleaded sincerely and honestly with the Home Secretary to give very serious consideration to their very earnest request that he accept the new clause and the amendments clustered around the concept of the public interest defence. This is one of the most powerful debates that I have heard in recent times in a Committee stage on the Floor of the House. It has been a very profound expression of the will of the House of Commons by hon. Members who have advanced very sincere arguments. it has been not a partisan debate or a party battle but a high-level, high-profile parliamentary occasion. People do want to get this Bill right.
Like others, I express gratitude to my right hon. Friend the Home Secretary for introducing a Bill which contains improvements to the overall situation, thus fulfilling the will of the House as expressed a number of times in recent years when we have seen the difficulties, the leakages and the various prosecutions, as well as the distinguished work done by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) with his own private Member's Bill—nothwithstanding the Government's reaction to that, which caused disappointment in some quarters. The Home Secretary has given a substantial response to those anxieties. I welcome legislation that does away with section 2 of the Official Secrets Act in its present ridiculous form.
I cannot understand why the Home Secretary has not said that he is prepared to accept the public interest defence. It is genuinely in the interests of this Government., of any future Government, of governmental integrity, of public life and of the value of this House as a guardian of the public interest—whatever its future electoral composition. There is scope for him to modify his seemingly obstinate stance. I understand the Home Secretary's difficulty and sympathise with him.
Earlier in the debate, some hon. Members rightly said that one could not analyse why juries returned a certain verdict. They said that public interest came into the minds of the jury in the Ponting case by implication and discussion, and thus affected their decision.
I was surprised when hon. Members—mostly Conservative—started to decry the jury system, because I thought that we attached great importance to it in the traditions of our British legal system. I, like other hon. Members, have my doubts about the tradition of our British legal sytem. I, like other hon. Members, have my 511 doubts about the jury system, which can work in a quirky way, particularly in criminal and City financial fraud cases. We tend to think, more and more, that there should be a panel of professional assesors in such cases rather than a jury, which cannot understand the intricacies of financial fraud and chicanery.
In cases involving official secrets, there is no substitute for the ideal sacred British tradition of the jury assessing the aspects and values and deciding the relevant prosecution. There is a need to build into the Bill an amendment on public interest defence. My right hon. Friend the Home Secretary is nodding, but perhaps not at that suggestion. Will he or the Minister, when they have the opportunity, return to the points made by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd)? The Home Secretary has not yet properly dealt with the difficulties in clause 3(3), which constricts the automatic confidential or contents criteria. It is a worrying subsection, upon which we need more guidance.
We are talking against a background of difficulties that have occurred in recent years. People have used phrases such as elective dictatorship—I do not, but a previous Lord Chancellor used it about another Administration. We are talking about the background of a political and constitutional system in which Governments with a minority of the popular vote can more or less do what they will—aided, abetted and supplemented, often with beneficial effects, by the tradition of the strong party Whip. In this country, Governments can operate without a true majority and—unlike the system in some other European countries—with no constitutional court to restrain them or say that they have gone beyond the reasonable bounds of what they were publicly elected to do.
In most other countries, one party cannot govern without a majority of more than 50 per cent. If there are no restraints inside the Chamber or, to a lesser extent, in the Upper House—where it does not matter so much and where their Lordships do their best in difficult circumstances—what are we here for? How can we uphold the public interest and serve the national interest in an on-going sense, rather than simply worrying about what the party manifesto, the Cabinet or No. 10, say? This occasion is a classic example of the traditional ritual of the strong whipping system, with just a handful of Members —mainly Conservative Members—introducing new clauses and amendments. I mean no offence to Opposition Members when I say that.
If that is the direction in which our politics is going in this country, God help us in this House of Commons. We must realise that we have a sacred duty not always to accept partisanship and say that we will do what the party Whips ask us to do, day in and day out. I do that most of the time, like all hon. Members, both Labour Members and Members from smaller parties, albeit from a problematical political and constitutional position.
If that is the case—as my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) implied, although he was dealing with specific points concerning the amendments and new clauses—we might as well give up, because we are not serving the public, and they know it.
512 People outside who follow these matters, although they are complicated issues even for parliamentarians, overwhelmingly want a public interest defence.
I do not necessarily agree with the interesting idea of the right hon. Member for Plymouth, Devonport (Dr. Owen). As I understand it, he said that all the officially listed category of persons should be heard in camera if they were prosecuted, rather than simply a significant minority of those designated persons. If it were a significant minority, I might consider that an interesting and constructive proposal, for the reason that the right hon. Gentleman gave—to try to help the Executive—but it would be too sweeping to go beyond that.
Once again—I do not wish to stray out of order in saying this—we come overwhelmingly back to the idea of a Select Committee of Privy Councillors in this House to oversee these matters. That Committee would be very much reinforced by having the proper kind of public interest adjustment which we want to see and which is contained in these amendments.
I was touched when the right hon. Member for Morley and Leeds, South (Mr. Rees) spoke in romantic and idealistic terms about the need for amendments to Bills, either on the Floor of the House or in Committee. We live in an age of cynical sophistication. The right hon. Gentleman must realise that we no longer amend Bills in Standing Committee, nor do we normally amend Bills on the Floor of the House. That is out of date and old-fashioned. Small technical amendments might be accepted and, occasionally, amendments on behalf of a trade association or an outside interest group in respect of a legitimate little matter. Does not the right hon. Gentleman understand that this is a new era? I wish that he would adjust his thinking to that new era.
§ Dr. Norman A. Godman (Greenock and Port Glasgow)
Surely, as a consequence of the absence of restraint, scepticism concerning the United Kingdom's constitution will grow. I argue—
§ The Chairman of Ways and Means (Mr. Harold Walker)
Order. That is a little beyond the scope of the amendments before the House. Mr. Dykes.
§ Mr. Aitken
My hon. Friend has committed a gross discourtesy to the Home Secretary in suggesting that no amendments are now allowed in debates. I wish to put the record straight. There will be one amendment. I should like my hon. Friend to take account of the fact that all amendments are equal, but one word from the Home Secretary will make one amendment more equal than others.
§ Mr. Dykes
I am mortified by the sin that I have just committed. If I had not been interrupted, I would have said that this was a marvellous opportunity for my right hon. Friend to say that that is not the case and that one of the most important amendments that has ever been proposed in respect of such legislation at this crucial stage is acceptable, or, at least, that he and his colleagues—I pay genuine tribute to their work on this legislation—will consider returning to the House with suitable proposals.
513 I wish to reiterate a point to which one or two other Members have alluded, especially my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath), if I understood him correctly. If there is a public interest defence in the legislation, we positively enhance the previous stage, involving all the other internal Civil Service procedures, to put the matter right before it reaches this stage.
The senior civil servants above the aggrieved official, up to the head of the Civil Service will have a chance to put matters right in the knowledge that, if they do not, there is a second line of defence for the nation as a whole. In discussion with his seniors, the aggrieved civil servant—in whatever Department he is working, be it security, defence or any other Department of State; it must be remembered that we are dealing with other than matters coming within section 1 of the Official Secrets Act—will know that the channels available to him are more legitimate and valid because the seniors above him must get it right. If they do not get it right, he will have the ability to act—genuinely and legitimately, not irresponsibly, superficially, frivolously, with malice or simply because he disagrees with policy. If he feels there has been wrongdoing, improper conduct or corruption in a Department of State, he will have a second line of defence—or perhaps it could be called a second line of attack—represented by the genuine national interest. That would save this country from going downhill and into dubious areas about which, I believe, journalists are already writing.
§ Mr. Rooker
This has been a long and interesting debate, and although I have listened to all of it, save when I left the Chamber to make two telephone calls, I have not risen to speak until now because I was anxious to hear what senior colleagues on both sides had to say.
The argument has been one-sided, as I pointed out in an intervention. Knowing the way in which the Government operate, I have every reason to believe that the Bill will be timetabled. We shall probably rue the day—the remarks of my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees) spur me into making this point—that when, a few years ago, we had a Government in a minority situation, they did not legislate on this subject. Such legislation, if passed 10 years ago under such circumstances, would probably have stood the test of time. I fear that legislation of this type, passed by the present Administration with their overwhelming majority, will not stand the test of time.
It is clear that the Government do not want public interest included in the Bill. The same can be said of other amendments that hon. Members have suggested but which the Home Secretary will undoubtedly turn down. I urge the right hon. Gentleman to remember that his party, with its present majority, will not be in office for ever. If we had a free vote, major amendments to the Bill would be made.
I am not suggesting that the official secrets legislation passed earlier this century has stood the test of time. It needs amending, and it will not be an easy exercise. If we are obliged to discuss the Bill under the guillotine, we shall end up having fewer hours in which to debate the measure than had we begun in Committee upstairs in the first place. Those who fall foul of the legislation will be bound to feel that the Bill was not adequately discussed.
514 Although we shall not have an opportunity to vote on all the proposed amendments and new clauses, I prefer new clause 4 to new clause 1, but that is only a choice between options. As the Official Report of our debates is read widely, including by those in the other place, it is worth recording that certain issues are regarded as House of Commons matters while others are not. Legislation is separate from that, by which I mean that the rules of the House, allowances, matters of access to the Palace of Westminster and so on are dealt with, by and large, without the Whips being on.
There ought to be certain classifications of legislation—certainly constitutional legislation, however it is defined—where different ground rules apply, if only to protect this House in future from having to keep coming back and looking at what are essentially long-term constitutional matters. In other words, the people ought not to be messed around every time a Parliament or a Government changes. By and large, the overwhelming majority of the House should accept that such a piece of legislation should be able to stand the test of time—to survive a decade or more.
That can be done only if future Parliaments know that the legislation was dealt with not by the dead hand of the Whips, not by the sledgehammer, not by the guillotine, but with a degree of free and open debate that we would not normally seek in the case of the ordinary run of legislation—legislation about which we might complain but in respect of whose passage I accept that the Government have to apply the rules of the House in getting their programme through.
However, this Bill, above all others—certainly any that have been dealt within this Session of Parliament—ought to be treated differently. It would be all very well to make the point that the Committee stage is being taken on the Floor of the House, if we knew that there was going to be a genuinely free debate, if we knew that Ministers would treat the debate seriously—and I sat through the whole debate last Wednesday.
The Home Secretary spoke a few hours ago. Since he spoke so early, he could not answer the debate. His early intervention was useful to the House, but at no time did he seek to address the substance and the detail of the group of amendments that is before the House, so, clearly, that will have to be done by another Minister, and that will obviously cause other Members to contribute.
If we knew that there was going to be a free and open debate, if the Government had a totally open mind and showed that they were prepared to listen to points of great importance to our unwritten constitution—theoretically it may be unwritten, but in fact it is written down in statutes like this for the servants of the Crown to operate—that would be a different matter.
In making this point, I end on the same note as the hon. Member for Harrow East (Mr. Dykes). If the Government were willing to countenance amendments of substance—clearly, provision for a public interest debate is a matter of substance; there is no argument about that—I am pretty sure that there would be less likelihood that servants of the Crown taking that gamble would feel upon them the pressures that they will undoubtedly feel if this legislation gets on the statute book.
Will the jury agree with me? I do not want people to be put in that position—and I think we have discussed these things a little too glibly. A public interest provision would simply be a long stop—perhaps a threat to the internal 515 workings of the Department to make sure that it listened to its employees and tried to see if there were a legitimate and reasonable redress.
There does not seem to be that degree of openness on the part of the Minister, and I think that we are all—not only right hon. and hon. Members on both sides but the people of this country—losers because of the way this legislation is being handled.
§ Mr. Whitney
Given the lateness of the hour, I will endeavour to be brief. I agree with the hon. Member for Birmingham, Perry Bar (Mr. Rooker) that this Bill is crucially important to the people of this country. It is right that I should emphasise that the area of debate centres on a very small number of public servants. The need to correct the Official Secrets Act 1911 has been recognised for more than 20 years, but we understood that that would be a very difficult task. We are all aware that the last Labour Government could not perform that task and the right hon. Member for Morley and Leeds, South (Mr. Rees) explained why.
We must understand how far the Government have come. The concerns that have been expressed tonight from both sides of the Committee centre on a narrow class of people within the ring fence. We are talking about a few thousand out of a total of nearly a million people who would currently be covered by the official secrets legislation.
My right hon. Friend the Member for Castle Point (Sir B. Braine), my hon. Friend the Member for Havant (Sir I. Lloyd) and others focused on cases like that of Captain Scott and the tanks and on industrial health and safety matters. There would be great benefits in those areas. We shall have swept away the all-embracing impact of the Official Secrets Act 1911 which is so unsatisfactory. Those activities which are not covered would be outside the ring fence and open to the test of harm. Hon. Members on both sides of the Committee should welcome that.
The right hon. Member for Plymouth, Devonport (Dr. Owen) asked in Committee last week what was happening to this House. I want to know what is happening to this House because we appear to be ready to throw away the very important balance in our concerns about public interest. There is a very difficult balance to strike in public interest matters. We all recognise that there is a fine balance between the public and national interest on the one hand, and the interests of public servants and their civic rights on the other. It all boils down to a very narrow category of civil servants to which the ring fence proposals apply.
Perhaps the right hon. Member for Devonport and his right hon. and hon. Friends can tell us what happened to the House when the Labour party was in government. The Labour Government recognised the crucial need for a degree of secrecy within the public service. For example, there was secrecy in the Chevaline episode to which reference has been made today. The development of Chevaline was kept from the House of Commons for reasons which will be known to members of the Labour Cabinet of the time. It must also have been known to dozens and possibly hundreds of public servants. I wonder what those right hon. and hon. Members who kept the details from the House would have said if a civil servant had decided that Chevaline was not in the public interest 516 and that he would reveal it. Right hon. and hon. Members must look into their hearts to understand the pressures of Government.
The examples that we have heard today demonstrate the validity of this Government's position. Right hon. and hon. Members have had to refer to absurd examples which do not bear a moment's examination. The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) is prepared to believe that a chain of civil servants would be corrupt and act in collusion. Of course, that is unacceptable and untrue. He can demonstrate his case only by citing examples which do not stand up. The old cliché that hard cases make bad law has never been more clearly shown than by the examples today.
We heard much about the Sir Winston Churchill and Duncan Sandys episodes before the war. I was not privileged to hear the speech from the right hon. Member for Blaenau Gwent (Mr. Foot), but I know that he referred to those matters, as did other hon. Members. If those hon. Members considered their examples, they would realise that the Churchill and Sandys episodes are of a different order of magnitude from what we are considering now. With regard to the public interest, we hope through this Bill to make Government work better.
In the 1930s we had a massive national debate. It was not a matter of a Ponting, a Peter Wright or a Cathy Massiter leaking information in a brown paper envelope to one individual. It was a major debate and everyone knew what was happening. Sir Winston Churchill was half within the realm of secrecy. He was a member of the Air Defence Council. Because of the lateness of the hour, I shall not read it out, but Martin Gilbert's book contains a list of 20 or 30 senior Ministers and officials who were well known to be in contact with Winston Churchill. I do not suggest that we should legislate for such a difficult situation.
§ Mr. Richard Shepherd
I am not sure what my hon. Friend is suggesting. Is he saying that if that were to happen today, Winston Churchill's leakers would or would not be prosecuted? Is he suggesting that it would or would not be appropriate that such people should be prosecuted today? Is the law to be based on some special public debate? If he believes that such circumstances occurred in the 1930s, how can he believe that the same could not happen tomorrow or another year?
§ Mr. Whitney
I was saying that it is quite inapposite to believe that we can construct a law to cover a massive national debate. If we seek to do that we shall write a Ponting charter. Nearly every Opposition Member has agreed that such conduct was contemptible and nearly everyone would agree that Government could not function if we had such a charter. I hope that my hon. Friend will accept that we have a problem, but the present is one thing and the problem of another national debate is another.
No one can seriously suggest that the substance of the debate in the 1930s was not clear. Churchill's attack on the Government of the day benefited from the hard information that he had, but the major debate about what was going on in Germany, what the Government were doing and what the Labour party was doing was a matter of public debate so the national interest was not so much in jeopardy. Therefore, we cannot use the 1930s affair to bring into law something that is not in the law of other 517 European countries. I commend to right hon. and hon. Members the letter in The Times today. In Switzerland, France and Germany the concept of a public interest debate in such a narrow area is unheard of and does not exist.
§ Sir Bernard Braine
My hon. Friend addressed a question in my speech, namely that if a foreign Government, albeit a friendly Government, provide the British Government with information which is then leaked because it is thought by the leaker to be detrimental to the best interest of the safety and health of the people of this country, under the Bill there would be no public interest defence.
§ Mr. Whitney
My right hon. Friend has just resumed his place and I had addressed that point earlier. As the person concerned was outside the ring fence, the harm test would apply. Under the Bill, the case that my right hon. Friend was proposing, would be a great deal more advanced, furthered and better off than it is now.
§ Sir Bernard Braine
With great respect, my hon. Friend said that the question of harm would not apply, but what would happen if a leak were designed to prevent harm?
§ Mr. Whitney
I said clearly to my right hon. Friend that the harm test does apply because the people he is talking about are outside the ring fence. Therefore, the Bill provides a major advance in the direction in which my right hon. Friend would urge us to go.
As the House knows, I am a former civil servant who, with hundreds of thousands of my former colleagues, gave loyal service to Governments of both complexions. If we introduce a leakers' charter into this narrow sector, we shall do much harm not only to the machinery of Government—to the responsibility and loyalty between Ministers and their nearest civil servants—but to the Civil Service. The affairs of Mr. Ponting and the performance of people such as him do much harm to the morale of public servants, the majority of whom will welcome the clarification and improvement in their status that the Bill offers.
§ Mr. Andrew Rowe (Mid-Kent)
I rise with some diffidence because almost every hon. Member who has spoken in the debate knows more about the subject than I do. I should like my right hon. Friend the Home Secretary to answer three questions, the answers to which may be known by everyone else.
First, is my right hon. Friend sure that people will be able to have their case heard by a jury? I am anxious that, because of the wording of some of the clauses, much pressure will be put on them to plead guilty. If that were to happen, their opportunity to present a defence would disappear. If some form of public interest defence were available, that danger would not exist.
Secondly, I hope that I have understood incorrectly, but it is not clear whether it is valid to say that while harm has been done, greater good has resulted. Is that part of the definition of "harm" being done? Many hon. Members have said that that is not so and that one may not lay good against the harm that one is alleged to have done. Again, the argument for some form of public interest defence is overwhelming.
518 Thirdly, how likely is it that it will be made impossible to mount a defence because the material needed to do so will be secret? This relates to the point made by the right hon. Member for Plymouth, Devonport (Dr. Owen).
I do not share some hon. Members' gloom about the closing of channels of communication. Whatever any Government wish to do, the growing cheapness and accessibility of international communications will make monkeys of most Governments over a wide range of matters. I rather welcome that because I believe that, in common with some other countries, we are ridiculously secret. Much better decisions would be made by Government if they were in the habit of consulting widely and early rather than, as so often happens, keeping opinions to their chests and extensively narrowing the amount of consultation.
The right hon. Member for Morley and Leeds. South (Mr. Rees) mentioned the classification of documents. As an administrative device, the suggestion that documents classified below a certain level should, ipso facto, be regarded as not harmful is sensible. The danger is that classifications become ever more restrictive. Embarrassment to Ministers, in particular, is a potent source of wrongdoing. Many Ministers—consciously or unconsciously—connive at the ever-growing number of documents classified as secret or top secret. That, too, would need to be looked into.
§ Mr. Corbett
A number of right hon. and hon. Members have said that this has been a remarkable debate, and it has. I am glad that the Home Secretary has been here to listen, and I am not being snide in saying that. I take the point that has echoed around the Chamber since the debate began just after 4 pm that this has been one of those all-too-rare occasions when the voice and will of the House of Commons have been expressed irrespective of party. I am trying to avoid treading in narrow party political trenches. The Home Secretary will be aware of the weight of shared opinion that has come from his right hon. and hon. Friends, which has been reflected by Opposition Members of various parties.
§ Mr. Winnick
I am grateful to my hon. Friend for giving way, as he has just started his speech. He referred to the debate. Does he agree that there has literally not been a single contribution since the debate began at about 4.15 pm that has tried to prolong the debate? Every point has been relevant and that is all the more reason why there should not be a guillotine.
§ Mr. Corbett
I accept absolutely what my hon. Friend has said, which reflects what a number of us have been saying to the Government. The Bill is so important that we require proper time to discuss it. There is not a shred of evidence that any hon. Member who has spoken today or in the first day's debate last week has been seeking to spin out time.
§ Mr. Maclennan
I have heard from a number of hon. Members repeated references to the possibility of a guillotine being introduced. As I am not privy to the usual channels, would the hon. Gentleman care to share his intelligence about the Government's intentions on the matter, if he has any?
§ Mr. Corbett
I can say to the hon. Gentleman only that I have heard the rumours and I have discounted them as being inconceivable.
519 The right hon. Member for Old Bexley and Sidcup (Mr. Heath) put the nub of the debate in a couple of sentences to the Home Secretary and his colleagues. He asked, broadly, whether the Government accepted that there was a proper difference between the national interest and the interest of the Government of the day. That is the point on which the whole argument about public interest turns. It has been suggested by some of the right hon. Gentleman's hon. Friends that although no specific public interest defence is written into the Bill, that defence will somehow come up in any event and that, in the nature of court proceedings, it will be one of the factors open to the defence. Some of us are not persuaded of that, but the Home Secretary will, no doubt, try to persuade us. If the Government argue that, by implication, a public interest defence will be arrived at in trials, why not write that into the Bill? What will have been lost? The Home Secretary has said that it is in the Bill. I shall be delighted if he will tell me about it.
In the Local Government and Housing Bill, which was published yesterday, the Government have not just written such a provision on the face of the Bill, but have written it heavily in it. Clause 5 provides for the appointment by local authorities of what it calls "the monitoring officer". The officer's duty is to scrutinise any "proposal, decision or omission" or any contravention ofany enactment or rule of law or of any code of practiceor any "maladministration or injustice" that is happening in that local authority's area. Indeed, it goes beyond the bounds of that local authority, whose representatives can serve on bodies such as police committees, local fisheries committees—we all know what nuisance they get up to—national park committees and any sub-committees of the bodies of the appointing council.
If that provision—
§ It being Ten o'clock, THE CHAIRMAN left the Chair to report progress and ask leave to sit again.
§ Committee report Progress.