HC Deb 15 February 1989 vol 147 cc358-99
Mr. Hattersley

I beg to move amendment No. 6, in page 2, line 31, leave out 'damaging disclosure' and insert 'a disclosure which would cause serious injury to the interests of the nation'.

The Second Deputy Chairman of Ways and Means (Miss Betty Boothroyd)

With this, it will be convenient to take the following amendments: No 7, in page 2, line 34, leave out 'damaging' and insert 'is one which would cause serious injury to the interests of the nation.'. Government amendment No. 86.

No. 8, in page 2, line 36, leave out 'prejudices' and insert 'causes actual harm to'. No. 20, in page 2, line 36, leave out 'prejudices' and insert 'causes serious injury to'. No. 21, in page 2, line 37, after 'their', insert 'defence'

No. 22, in page 2, leave out lines 40 to 44.

No. 9, in page 2, line 41, leave out 'jeopardises' and insert 'causes actual harm to'.

Mr. Hattersley

Amendment No. 6 provides the Committee with an opportunity, or as much opportunity as the timetable motion allows, directly to examine one of the protections that, according to the Home Secretary, run through the Bill and provide a safeguard against prosecution and conviction for trivial or inconsequential offences. The amendment specifically refers to the provision in clause 2(1), in line 31, that a disclosure is unlawful only if it is damaging. Through this amendment, we seek to replace the general motion of "damaging disclosure" with the more precise concept of a disclosure which would cause serious injury to the interests of the nation. The amendment relates exclusively to matters concerning defence. I assume that the Home Secretary will not object to that, as it is the sort of example that he enjoys. I remind him, in the hope that a vestige of shame is retained in his attitude towards the Bill, that he told the Conservatives at Cambridge last week that a public interest defence would provide an excuse for disclosing the battle plans of the British Army of the Rhine.

Mr. Hurd


Mr. Hattersley

The shame manifests itself.

6.15 pm
Mr. Hurd

It was esprit d'escalier. I thought of an argument after the debate here that I had not thought of before. If the right hon. Gentleman considers his previous amendments, which the Committee rejected, he will find that they are open to the description that I gave.

Mr. Hattersley

One of the difficulties of the debate is that the Government always use their best argument outside the Chamber. We must hope that the Minister of State can think of some better arguments outside the Chamber than those that he advanced in defence of the Government's position in the previous debate. We look forward to hearing the Home Secretary justify his position when we come to Report.

We have chosen to take the example of defence in part because it is a hard case. It is one that we should have to justify were we to say that a more stringent definition of damage, harm or serious damage or harm would be acceptable. The amendment would make the criteria against which harm is judged a great deal more precise. While it is explicitly concerned with information relating to the armed forces, it provides the Committee with an opportunity for general examination of our strongly held view that prosecution should be limited to matters which affect the security of the state.

The Home Secretary may argue that such is the case even now, for the clause refers to, and therefore prosecutions are limited to, something described as "damaging disclosure". In the Home Office press release announcing the publication of the Bill, he equated that concept of "damaging disclosure" with specific tests of harm to the public interest. Equating those two things was wholly unjustified because the definition in the Bill gives a whole new, much wider and, I would argue, more vacuous meaning—if, indeed, it has any meaning at all—to the word "damaging" as the Bill intends it to be understood.

In clause 2(2)(a), line 36, the term "damaging" is defined in its relationship to the armed forces. It begins with the assertion that a disclosure is damaging if it prejudices the capability of, or any part of, the armed forces of the Crown to carry out their tasks". That means any task—not serious tasks, tasks in defence of the realm, or tasks in pursuit of their role within the North Atlantic Treaty Organisation. Farcical though it may seem, within the terms of the Bill it would be "damaging" and therefore a criminal offence if, by unauthorised publication, an official made it more difficult for troopers of the household brigade to arrive on time at Smith's lawn to act as labourers during a polo match.

One is always torn between pointing out the triviality of aspects of the Bill by giving trivial examples and reminding the Committee that, although the trivial examples show how wide the Bill's application might be, they also reveal a serious issue in the extent of its coverage. The Smith's lawn case which I gave as an example of triviality is not beyond the bounds of possibility. I decided on that as an example after reading newspaper letters which suggested, rightly or wrongly, that at a time when the defence budget is under pressure, members of the armed forces should not be employed on such social tasks.

It is easy enough to imagine a demonstration delaying the progress of a bus from Knightsbridge to Windsor and the time of departure of the bus being revealed to the protesters by a dissentient in the Civil Service. I would regard that dissentient's conduct as deplorable, but we are not concerned with our subjective judgment about the behaviour of individuals. We must ask ourselves whether such an individual should be prosecuted under an Official Secrets Act and what kind of Bill would confer the power to make such a criminal prosecution in such admittedly and intentionally trivial circumstances.

My next example is perhaps clearer, more obvious, more meaningful and more practical. On Second Reading I told the House about the prospects of a fraud being committed at a Government defence establishment. I asked the House to assume that a civil servant had discovered corruption at a royal ordnance depot and that the news of that scandal was suppressed by authority. The hon. Member for Wycombe (Mr. Whitney) was scandalised that I could suggest that such a thing might happen. Since that debate, I have received several letters from old soldiers giving examples of my hypothesis.

I wish to pursue the example as a hypothesis. There is corruption and internal complaints are suppressed. A member of the armed forces reveals the scandal so that it can be cleaned up. There is no doubt that under the Bill the man or woman who made the revelation would be prosecuted. The protection of the harm clause would not apply, because harm would have been done. The revelation would almost certainly prevent the depot from operating with its normal day-to-day smoothness and the operation of the armed forces would have been prejudiced in that particular. That would be enough to convict. Few sensible people would doubt that the revelation was in the national interest. If amendment No. 6 is carried, the prosecution would not in those circumstances succeed. Far from doing serious injury to the interests of the nation, my hypothetical disclosure would, in the long term, benefit the armed forces and the country.

The distinction between the harm test not providing protection in that case and my amendment doing so rests on the nature of the harm test as described by the Home Secretary—wholly accurately—when we debated the matter on Second Reading. The Home Secretary told the House: The Bill does not allow the defendant to argue that although his disclosure has caused the specific harm, and he knew that it would, the court should weigh that against some other consideration. When pressed by me, he was absolutely clear and absolutely right when he said: the defence would simply argue that harm had not been done or that capability had not been damaged … but neither the prosecution nor the defence could import vague arguments derived from other matters."—[Official Report, 2 February 1989; Vol. 146, c. 470–71.] By that he meant that it would be impossible for the defence to argue that, although a little harm had been done, a great deal of good had come from it. There would be no test of what I shall call net harm—weighing the harm against the good and deciding which predominates. If that were the case—if we could judge what I call the net harm—it would in all but name be a public interest defence.

Whatever the terms or description, the fact that a small harm results in prosecution and the large good which comes from it does not constitute a defence seems to most reasonable people to undermine the Home Secretary's idea that the harm test is a defence against trivial prosecution and removes one of the eight, nine, 10, 12 or 15 protections that the Minister of State has told us about in one debate after another.

Mr. Terence L. Higgins (Worthing)

I believe that this is an appropriate point to intervene. Is there not an intermediate stage in the story that the right hon. Gentleman is recounting? Does not the civil servant go up the Civil Service hierarchy, if necessary to the head of the Civil Service, to seek a remedy before the events that the right hon. Gentleman described take place?

Mr. Hattersley

Yes, that is within his power and according to the Government that is what he should do. From the history which has been drawn to my attention since the previous debate—from letters on the subject—it is reasonable to imagine occasions when all attempts to object through the proper machinery have failed. Even if that only happens once, only happens in theory or does not happen very often, is it right that a person who discovers wrongdoing should not be able to offer as a defence the fact that although revealing the wrongdoing caused embarrassment, inconvenience or disruption. the revelation was a service to the nation?

The extent of the harm must be weighed under the terms of the amendment. The right hon. Member for Worthing (Mr. Higgins) must remember the other point. By stating that harm is the criterion and by defining it in the way in which it is defined in the Bill, no matter how trivial the harm, it is automatically a cause for prosecution and for conviction. On both criteria, the Bill is at fault.

The concept of harm and the serious injury concept which extends it, had their origins in the Franks report, which came down clearly on the side of serious injury being the measurement against which criminal prosecution should take place. That report proposed that a serious injury test should apply to criminal prosecutions in cases were unauthorised information about foreign relations, defence and the security and intelligence services was revealed.

The Home Secretary always asserts—and no doubt he will reassert it today—that the Franks espousal of the specific damage test is irrelevant because the Franks report was based on the notion of ministerial certification establishing what was an official secret and what was liable to prosecution in consequence. He has never done more than assert that the two things—certification and serious injury tests—are necessarily linked. I see no justification for his assertion that they go hand in hand. I look forward to hearing the Home Secretary's justification later.

I will explain why I cannot accept the connection. Under the Bill, prosecutions will conclude with the jury making a judgment about the effects of revelation. That was not anticipated by Franks, but that is no justification for refusing to include a test of serious injury against which the jury will make judgments about the effects of the revelation.

The jury must take a decision after direction on law. As the Bill stands, the law requires conviction if a disclosure prejudices the capability of, or part of, the armed forces of the Crown to carry out their tasks and that applies whatever the task, no matter how trivial or temporary. That is how harm is defined. That is a wholly unreasonable criterion against which to measure guilt, to obtain conviction and justify a prison sentence. A much more reasonable test for the jury would be to decide whether disclosure was damaging, and seriously damaging, to the national interest.

There are other reasons why the definition of what sort of information is revealed should be changed. As things stand, the definition of information which if revealed results in prosecution is extraordinarily wide. Not only is it a criminal offence to disclose any information which prejudices any action by the armed forces; it is similarly an offence to disclose any information which is likely to have that effect.

Technically at least, revelation of information which is likely to make the bus carrying the band turn up late at the garden party is an offence under the Bill. Information which is likely to have the effect of making the military band turn up late for the garden party is an offence under the Bill. The Home Secretary smiles, and I am glad to see him do so, but my belief is that that is not the result which the Home Secretary intended. I ask the Home Secretary to take a more rational view of the criteria against which harm and damage to the nation and the real effects of the Bill are measured.

Throughout our discussions, we have tried to draw a distinction between the suppression of information that, if revealed, will be genuinely damaging to the national interest and the allowance of, or support for, the revelation of information that will have no lasting damage. Without the criterion that we propose, that distinction is not made. If the Home Secretary cannot accept our amendment, only one conclusion can be drawn—that the Government want to retain the catch-all powers, but in a concealed way.

6.30 pm
Mr. Buchan

I wish to continue the argument about the balance between harm done and public interest in regard to a clause that refers to an absolute power in defence matters. My right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) gave the example of an individual exposing corruption. I shall give a hypothetical example, although it may prove to be not so hypothetical after all.

First, I refer to the case of the radiation leak at Windscale. What would have happened if Windscale had been a military establishment, and if an individual had revealed that leak in the interests of public safety? Under the Bill, he would automatically be guilty, because he would have done damage by prejudicing the capability of that defence establishment.

On the Clyde, there is a major nuclear base. Anything disclosed about that base which could be to its detriment might be said, under clause 2, to cause harm. But if a radiation leak occurred at that base, harm would he done to a number of nearby towns, and even to Glasgow itself. It would be necessary to reveal such a leak in the interests of the nation. But even under the amendment proposed by the Home Secretary, damage would be done to the nation's defence capability, in the sense that the efficacy and efficiency of that base's nuclear deterrence would be brought into question.

There is a clear balance of interest, but not a balance of judgment. There is a balance of interest in favour of defence secrecy, but not a balance of interest relating to the need to disclose facts affecting public health—so that public authorities could deal with the situation by evacuation, for example. There is no balance of judgment, because the clause deals only with the question whether damage is done to the nation's defence capability, and allows for no judgment to be made between the relative balance of those two interests.

Government amendment No. 86, which proposes to change the word "prejudices" to "damages", does not go anywhere near tackling the situation. What is needed is the precision of amendment No. 6 and the wording a disclosure which would cause serious injury to the interest of the nation. There is no doubt that the interest of the nation would be damaged if a radiation leak at a military establishment were disclosed and if no action were taken by the civilian authorities to deal with it. Our amendment would deal with that real problem. I say that it is a "real problem" because I am dealing with an actual case. After the experience of Windscale in 1957, there is no doubt that something similar could happen in relation to a military establishment. The Home Secretary looks as though he wishes to make a point.

Mr. Hurd

The hon. Gentleman seems to be switching his argument between civilian and military installations, and assuming that Windscale is a military installation. In the case of a civilian institution, a different range of arguments apply. Such a case would fall outside the scope of the Bill, but not outside section 2 of the present Act.

Mr. Buchan

I am aware of that. I make the point that a leak took place at Windscale, and that it was covered up.

Mr. Hurd

Windscale is not a military installation.

Mr. Buchan

I know. The right hon. Gentleman does not get my point. I shall repeat it, in monosyllables if possible.

A radiation leak occurred at Windscale, which was not disclosed. Today, we have on the Clyde a military defence establishment. If a leak at a civilian installation was covered up, a leak on a military base is likely to be covered up also—it may be considered even more important to do so. If a radiation leak occurred on a warship, when the potential damage would be much greater, and if an honest whistleblower, with the interests of the public in mind, disclosed that leak, there would be no balance of judgment between the damage done to defence interests and the protection against the potential damage to the local community.

Clause 2 makes the individual responsible for such a disclosure automatically guilty. I cited a real example involving a civilian installation, but one that could recur in respect of a military installation. The Government's provision does not hold, and the clause should be amended so that there will be a balance of judgment between national interest and greater public safety. Now does the right hon. Gentleman understand my point?

Mr. Hurd

indicated assent.

Mr. Allason

First, I apologise if, when I spoke before, I sounded as though I was acting as John Le Carré's agent—I have no interest in him whatsoever.

I draw the attention of the Committee to what I suspect is retrospective notification in clause 2. There has been a Front Bench admission that there will be no retrospective notification of people under section 1 of the Official Secrets Act 1911. However, clause 2(4)(c) gives a definition of defence that includes "intelligence". I am worried in case that is a back-door method of restrospective notification. It suggests that anyone who has been a Crown servant at any time will be subject to that provision.

Clause 2 defines defence, very broadly, as intelligence. That is a matter to which the Committee should give its serious consideration. In the past, there have been occasions—this relates specifically to the test of harm and serious damage—when disclosures relating to intelligence have been made that, although not damaging, have caused great controversy. I give three examples concerning advice to the Prime Minister, where disclosure was subsequently demonstrated to be clearly in the public good. My concern is that, if clause 2 is interpreted as offering retrospective notification, it will be prohibitive.

The first example must be the case of Anthony Blunt, which sank the Government's last attempt to undertake a bit of reform. It failed miserably; but why did it fail?

In November 1979, Anthony Blunt was contemplating defamation proceedings against an author. The Government had a clear choice. They could stand back and watch Blunt perjure himself in the witness box, which was the advice that they received from the Security Service, or they could make a statement which would expose Blunt's treachery. The Security Service argued at the time that it would be fatal for the Prime Minister to make any kind of statement relating to Anthony Blunt, because it would turn the potent weapon of immunity from prosecution into something completely useless: no one else would ever believe an offer of immunity from prosecution if it were disclosed officially that an individual had been given such immunity. Thanks to the intervention of the then Attorney-General—and, I suspect, to her own background as a barrister—the Prime Minister declined to take that advice, and made a very full statement.

Let me cite a related case with which I was involved. This was another important disclosure, which I think was made very much in the public interest and did not jeopardise security or the nation. At the time of the Blunt disclosure, the House was given an assurance that no one else had been given immunity from prosecution, and that there had been no other traitors who had confessed. Hon. Members will recall that, within a matter of months, a man called Leo Long was revealed to have been a spy and a traitor, and had made a statement to the Security Service. When the matter came before the House, the advice of the Security Service was, "Of course, Leo Long is an entirely different case. He did not receive immunity from prosecution; he was simply told that he would not be prosecuted." That definition surprised many people, especially lawyers.

I cannot believe that the Government Front Bench can be sanguine about this subject, in view of the advice given to the Prime Minister recently about Sir Roger Hollis. There was a clear implication that no Soviet penetration of the security or intelligence services had taken place after the second world war—that all the evidence of such penetration was pre-1945. That is very relevant, because it was the one statement that prompted Peter Wright to say, "Hang on a second: I know that that isn't true. There is evidence of Soviet penetration, particularly of the Security Service, in 1963."

This is a minefield. Great care must be taken, and I would be very nervous about any kind of back-door notification. In my view, disclosures of this kind can certainly be in the public interest.

Mr. Gorst

Would any of my hon. Friend's three examples be prohibited under the Bill at some future time?

Mr. Allason

Certainly those disclosures could not have been made under clause 1.

Members of the security and intelligence services understand their position, although they may not like the idea of being told retrospectively that they are now covered by an entirely new form of legislation that restricts their human rights. And who knows—many of them may well he prompted to go to the European court in the future. They have experienced, or are about to experience, retrospective legislation. But my argument does not concern people who are already members of the intelligence and security services, or are joining them now. They accept the burden of responsibility knowing full well the implications and, indeed, the restrictions. I am concerned about the business of notification.

6.45 pm

Clause I would not only include members of the intelligence and security services—who, as my hon. Friend the Member for Thanet, South (Mr. Aitken) suggested, are now members of a unique group like a leper colony, never able to make any kind of disclosure or to discuss their work in any circumstances. It would also include those who would be subject to notification. Although we have received an assurance from the Government that there will be no retrospective notification, I believe that the clause, and the subsection to which I have referred, can be interpreted as exactly that: back-door, retrospective notification.

Let me give a more specific example of what could be described as a dilemma. Some years ago a British business man was imprisoned in the Soviet Union for espionage. He was subsequently swapped and brought back to this country. We now know that he was in the employ of the Secret Intelligence Service at the time.

That man would have an interest, would he not, in learning that his case officer—the man who recruited and employed him—had been revealed in documents, declassified in the United States, as having been in touch with the Soviet military intelligence service, the GRU, in 1946? It would certainly be of considerable interest to someone who had spent eight months in the Lubianka to learn that not all his difficulties might have been at the hands of the Soviets—that there might have been an entirely different aspect of his case. Yet not only will he be unable to pursue or investigate the matter; he will be unable to discuss his experience or to seek advice.

I urge the Government to recognise that they are not legislating to deal with some obscure future threat. At present 75 books are published in England and America each year on the subject of intelligence, and 300 universities in America offer intelligence courses. This is an open, legitimate topic for study, and it is absurd to try to prevent people from providing the benefit of their experience. We are limiting their human rights if we do that.

Mr. Winnick

Allegations have been made before that Sir Roger Hollis may have been a Soviet spy. I have not a clue whether he was or not, but is it not true to say that the same accusations are made from the other side? I well remember that when Beria, Stalin's Himmler, was charged with all kinds of offences and executed, he was accused not of the crimes of which he was really guilty, but—in 1953, shortly after Stalin's death—of being a lifelong agent of British intelligence. I was most surprised that British intelligence had been successful enough to have an agent who was No. 2 in the Kremlin.

Mr. Allason

The hon. Gentleman will be amused to know that the first three heads of the NKVD, the MVD and the KGB all came to a sticky end. They were all executed for exactly the same reason—that they were members of the British intelligence service. Taking up the hon. Gentleman's point about Sir Roger Hollis, I was not making an accusation, and I apologise if that was not clear. I was making the specific point that people within the intelligence community knew for an absolute fact that there was Soviet penetration of the Security Service in 1963. That caused considerable anxiety when the House was assured that the evidence of Soviet penetration could be explained by Anthony Blunt, Kim Philby and Guy Burgess. That was blatantly untrue because the proof related to 1963, not prior to 1945.

I shall now turn briefly to Anthony Cavendish. The Committee will be interested to know that Anthony Cavendish has already written one book and has been the subject of legal proceedings. but that does not concern us. However, his new book con tract is for a biography of Sir Maurice Oldfield. As I understand the Bill, he will be in the queue behind John Le Carré—and probably behind me as well—for the No. 1 court at the Old Bailey, because he will be banned from writing anything on any subject. That ban will include not only his own experiences but a legitimate biography of someone else.

I urge my right hon. and hon. Friends on the Front Bench to realise that the legislation will not work. We will have egg on our faces for so long into the future. I cannot imagine that the Government believe that by turning the legislation into a laughing stock and by guillotining the time allocated to it they will achieve anything except one great objective—to boost the business and profits of publishers in New York and not in London.

Mr. Merlyn Rees (Morley and Leeds, South)

Clause 2 involves the serious matter of defence and it is important that we get it right. I am not sure that the procedures that we are following are the best way of doing that.

The hon. Member for Torbay (Mr. Allason) made me realise the importance of the meaning of words. Although I understand that we have decoupled the Franks recommendation of gearing the matter to classification, certain words still have to be interpreted when the Attorney-General decides to prosecute or when decisions are taken in court. The hon. Member for Torbay referred to the definition of intelligence in one context. I am involved with other contexts in research into terrorism. Only the other day we discussed what is meant by intelligence information. All too often intelligence is no more than information, but the word has a much wider meaning than simply a collection of facts. When the terms "intelligence" and "intelligence officers" were used in the armed forces they were not used in the sense in which they are used in books and in general.

The hon. Member for Torbay spoke about the past, and of course time is an important consideration. When does information cease to inflict serious injury? Something may have been important 20 or 30 years ago but is not important now—I am not referring simply to the 30-year rule. The accountability of the Security Service is also important in that context. The hon. Gentleman mentioned the Prime Minister's statement about Blunt. That statement, word for word, had been prepared when I was Home Secretary. If the hon. Gentleman's allegation is true, either in the statement or in the questioning afterwards, that more than three people were involved, there is no way that I would have known many years later whether the answer with which I was provided was true or false, because no information is given to an incoming Government about a previous Administration. Therefore, one is not au fait with all the matters when something breaks.

As the hon. Member for Torbay demonstrated, clause 2 contains many matters that ought to be discussed thoroughly. I shall concentrate on amendments Nos. 6 and 7, tabled by my right hon. and hon. Friends and supported by others, with particular reference to the words serious injury to the interests of the nation. I remind the Committee, as I always have to remind myself, that section 1 of the Official Secrets Act, 1911 is the spy provision and that is not affected by the changes made in clause 2 of the Bill. No one has any time for the spies who, for a variety of reasons, engage in selling one country to another for some purpose. We are discussing clause 2, but the real spy provision is section 1 of the Official Secrets Act, which will remain on the statute book.

Let me deal with what is meant by the words "serious injury". Ministers have suggested repeatedly that the Bill deals with disclosures which cause serious harm. The Home Secretary used those words. The amendments use exactly the same words, so there should be no disagreement on that. The Home Secretary said: 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."—[Official Report, 2 February 1989; Vol. 146, c. 469.] The Minister of State said: The Government do not accept that the criminal law is the right place to balance one Crown servant's perception of the public interest against the specific and serious damage that his disclosure has caused."—[Official Report, 21 December 1988: Vol. 144, c. 540.] "Serious damage" and "serious injury" are the theme song of the Ministers and of letters that they have written to hon. Members.

In his usual way, my hon. Friend the Member for Linlithgow (Mr Dalyell) put 14 questions to the Home Secretary. The Minister of State replied: Your fourteenth question is based on the assumption that the object of the Bill is to stop leaks. The reply continues: The object of the Bill is to ensure that in future the criminal law will penalise only those unauthorised disclosures of official information which cause a serious degree of harm to the public interest". The Leader of the House, in the guillotine debate, talked about the Bill being a radical narrowing of the scope of the criminal law". He also said that what we will now be dealing with is official information whose unauthorised disclosure would cause a serious degree of harm to the public interest"—[Official Report, 13 February 1989; Vol. 147, c. 71.] In preparing myself to deal with amendment Nos. 6 and 7, I asked myself first why I am deploying an argument when the Home Secretary, his Minister of State and a letter from the Home Office talked about serious injury. What is there against putting "serious injury" into the Bill, because everybody uses those words?

7 pm

Mr. Corbett

The Home Secretary has been more helpful than he has told us. On 21 December, the right hon. Gentleman spoke about an unacceptable degree of harm to the public interest, implying that there were different degrees of harm or injury. That supported the argument of my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees) that, as the Franks committee said, criminal law should apply only to the area where it is serious harm, and disclosures which did not cause serious harm should not fall within the provisions of the criminal law.

Mr. Rees

I had not paid much attention to the question of official secrets until I was appointed to the Franks committee, where I learned a great deal.

The question of classification may be important to right hon. and hon. Members at later stages of the Bill. I understand that the Government have decoupled classification, as in the report, from the Bill. I understand, too, that that is why the Home Secretary referred to juries in the extract from his speech which I quoted. It is important to my argument to use the classifications, whether it is coupled or uncoupled.

On the Franks committee, we decided to repeat briefly where the criminal law should apply to the classifications used in the Civil Service. "Top Secret" means exceptionally grave damage to the nation. "Secret" means serious injury to the interests of the nation. It said in the debate last week that we felt at the time—I never put my mind to it very much afterwards, but I should have done—that the classification "secret" was given to documents to which it should not apply. When the classification "secret" was used in the leaked National Health Service document, it should not have been. The leaking of that document would not have caused serious injury to the interests of the nation. Whether anybody supports the leaking of that document by a civil servant or not, it would not have caused serious injury to the interests of the nation.

When I re-read our report the other day, it caught my eye that we put in a separate section entitled "Confidential". Under that heading we said: It is worth noting that in common parlance 'confidential— which is the third classification— means something less than 'secret'. In the Government's system, the marking CONFIDENTIAL represents a secret". We discovered that "confidential" was a pretty high classification. When one looks at documents which have the classification "confidential", we can see how the classification has been misused. Whether coupled to prosecution or not, we decided that serious injury should be the key on which prosecutions should be decided.

Mr. Hurd

I have been following the speech of the right hon. Gentleman with great interest, but will he accept that under the Bill that Cabinet document on health, whatever its classification—"confidential", "secret" or whatever, and whether it was a good or had classification—would not have been covered under the criminal law, regardless of the damage that might have been alleged? Is the right hon. Gentleman saying that it should be covered by the law, provided that it did serious damage, or is he as liberal as we are?

Mr. Rees

I have never reached the point of having to declare myself a liberal. I shall leave that to the right hon. Gentleman. Of course, I understand that point. What I said was that. in deciding whether or not there should be a prosecution, it does not help if the word "secret" is stamped on documents that should not be classified in that way. It is time that the classification was changed. That document should have had a classification which said that it should not be revealed until next week, after which it would be public knowledge.

I shall quote what the Franks committee said about the security of the nation and the safety of the people. The Franks report has been the bible on which I worked when I was Home Secretary and when I was in Northern Ireland. I recommend that hon. Members read part II, chapter 9, of that report. Paragraph 116 says: National security is widely, accepted as the prime justification for employing criminal sanctions to protect official information. Paragraph 117 says: It is in this context that strong measures are clearly justified in preventing serious injury to the nation. I want to prevent serious injury to the nation. I do not want there to he any dubiety about that when the legislation is passed. Paragraph 117 continues: It is less clear that the criminal law must be brought in to reinforce other means of protection where the possible injury is of a less serious nature. The most obvious example is defence. I quoted that passage because the most obvious example is defence, and clause 2 refers to defence.

The report says: It is less clear that the criminal law must be brought in … The most obvious example is defence. Some defence information is highly secret: its unauthorised disclosure would cause serious injury to the nation, and it requires full protection. Some defence information is public knowledge. Some defence information may he classified and protected in this country, but one can read all about it in the United States. We shall come to that point when we deal with information which has already been published.

Paragraph 117 goes on: In between these two extremes, there is a continuous gradation … In our view, the appropriate test on this basis, in relation to national security, is that unauthorised disclosure would cause serious injury to the nation. Paragraph 118 says: 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. That was not a weekend article in the quality press but an inquiry under the chairmanship of Lord Franks, with all his great proconsul experience in government during the war and as an ambassador in the United States. It does not apply to all defence information. Some information would not be caught.

I want to ask the Home Secretary whether the way in which the Bill is drawn—forget the decoupling—means that the disclosure of information which would cause less than serious injury to the defence of the nation would be caught by this clause and the Bill in general. If it would be, we have moved a long way from Franks, as well as decoupling the classification, which is neither here nor there. The Home Secretary smiles in his diffident way. Is there something wrong in my argument?

Mr. Hurd

The right hon. Gentleman is missing out the other side of the coin that he is minting. The other side of the coin is that the Frank's analysis would lead to a great deal of information—which we are proposing to liberate from the criminal law—remaining under the criminal law, providing that the prosecution could prove in the case of Budget secrets or secret documents on education that serious harm was done. The right hon. Gentleman has not admitted that.

Mr. Rees

I have with me the statement I made in 1976. If the Home Secretary looks at it, he will see that we did the same thing. Therefore, there is nothing new in that. I am talking about defence. Franks said that the test for defence should be one of serious injury only, but is there a departure from Franks which makes the clause more restrictive?

Mr. Gorst

Will the right hon. Gentleman comment on another aspect? If the Home Secretary were to find that the Ponting case and "Spycatcher" arose under defence, he might argue that the words 'serious damage" would not have led to a conviction but the word "harm" would. Perhaps the difference between ourselves and my right hon. Friend the Home Secretary on this matter is what would be included and would lead to a conviction and what would be left out.

Mr. Rees

That is an interesting point and is one reason why we should consider the clause in more detail than we will have a chance to do. I appeared as expert witness, or whatever it is in legal parlance, in the Ponting case at the Old Bailey. That is not my wont because, as the Home Secretary points out, I am not noted for liberality.

Mr. Tony Banks


Mr. Rees

I have received confirmation from my hon. Friend the Member for Newham, North-West (Mr. Banks).

I appeared at the Old Bailey after discussing the matter with a colleague from the previous Government and I went on one basis. The Government had said that it was not a security matter, did not involve a serious injury to the state and did not warrant the use of the criminal law. Before I made my statement in 1976, the late Sam Silkin, who was then Attorney-General, had a word with me in his diffident way. He was a Law Officer, and was therefore divorced from the ways of government. I said in 1976 that I was authorised by the Attorney-General to say that, because I had made that statement, from that time criminal prosecutions would take place only for serious injury to the state or classifications above that. Therefore, from that time, for a period of three years, Sam Silkin gave effect to those words. I am not talking about what happens at the Department of Education and Science or the Ministry of Agriculture, Fisheries and Food, because that is a different argument. We are talking about defence. The Government have gone too far. The test should still be one of serious injury. I accept that classification has gone awry over the years under all Governments and we have to consider how the test should be applied in terms of the words which appear on documents.

I understand from words used earlier in the debate that there is some information in Northern Ireland, which, over here, would be seen as unimportant—not just in the seamless robe argument—but which should be protected. Unfortunately, just outside Belfast some soldiers at a sports meeting were killed because a bomb was placed in their unit truck. It is clear that information about the movement of soldiers in Northern Ireland, whether in vehicles leaving Aldergrove and going to Armagh or going to a sports meeting at Lisburn, has to be protected because it is vital to the lives of those soldiers. Some information can be revealed in some places but not in others; I understand that.

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How will the system work in practice? I do not want to refer to the clause dealing with the role of the Attorney-General, but he is still in control of prosecutions. I presume that his decision will be based on public interest. That is why I was astonished that the Government continued to act against Wright in Australia under the civil law when permission had been given to Chapman Pincher to publish the same information a year or two before. I know that I am dealing with the clauses dealing with pre-publication, but information is worth protecting only because one is protecting the defence or security services. It is not worth protecting it when it is too late.

Will notification mean that every part of clause 2 will, to the Attorney-General, be worthy of prosecution? Will the words "public interest", which I presume still apply to the Attorney-General, mean that he can say, "Let us not proceed with this because it is palpably silly"? Clause 2 is more widely drawn than I expected, and it is important to know for the record what the role of the Attorney-General will be in defence secrets.

It is important to get things right when we are dealing with defence secrets. It is important when the lives of individuals are at risk. The chapter from the Franks report from which I quoted talks about the security of the nation and security of the people. That is true when we deal with prisons, prison information and certain types of information collected by the police. We do not do a service to the community if we go too far.

These will be the last words that I utter in this debate because I have to go to my home town where there is a local by-election. I cannot resist the temptation to go there as I was involved in the first by-election there many years ago.

Mr. Buchan

Is that confidential or secret?

Mr. Rees

It is classified as secret.

It is important that the Attorney-General and other Ministers should know where they stand. It is also important that the people working in the defence services should know where they stand. I believe that the Government have gone too far and that their actions will lead to the law being broken in defence matters more often than it should be. They should think again.

Mr. Richard Shepherd

I delayed speaking because I wanted to hear the contribution made by the right hon. Member for Morley and Leeds South (Mr. Rees). I wanted to hear his comments on "serious injury" and Franks, which underwrites many of our views and our approach to the matter.

The right hon. Gentleman mentioned several statements made by the ministerial team. He pointed out that on 2 February 1988 in column 469 of Hansard my right hon. Friend the Secretary of State talked about "serious harm". He pointed out that my hon. Friend the Minister of State referred to "serious damage", on 21 December in columns 540–41 and that on 13 February my right hon. Friend the Leader of the House also referred to that. I saw the transcript and heard the reports and I know that in his address to the Royal Television Society my right hon. Friend the Home Secretary again referred to "serious damage", and it is mentioned in the letter to the hon. Member for Linlithgow (Mr. Dalyell).

That shows the difficulty that we have had. Terms are used inside and outside the House which convey a spirit or sense of the Government's intent. If the Government wanted to legislate with a test of "serious harm", I would have no objection and would support entirely the intention of my right hon. Friend. Government amendment No. 86 reads: Clause 2, page 2, line 36, leave out 'prejudices' and insert 'damages'. That is where the difficulty arises. My right hon. Friend the Home Secretary told us in the course of one of our debates that he had listened carefully to the arguments, and he picked up his distinguished former colleague Sir Leon Brittan's observation about the word "prejudice". Sir Leon Brittan said: It would be easier to prove that the material that is disclosed prejudices something than that it does serious harm … I do not see any justification for what amounts to a tightening up of proposals that were originally put forward in 1979."—[Official Report, 22 July 1988; Vol. 137, c. 1430.] Then, in taking account of what was said in that debate on the White Paper, the Government respond with a significant shift—an amendment to leave out "prejudices" and insert "damages". I am not sure what the Government are trying to do. They talk in terms of serious injury and harm and then eschew the concept in legislation. I know that my right hon. Friend the Home Secretary has shrugged off my comment, but too much of the Bill has been legislation by Home Office press release and statements outside the House, resulting in a failure to give attention to what is proposed in the Bill.

A few minutes ago we were debating another matter and I heard the Minister of State, who I take it has now been elevated to the position of a Law Lord, no less, make statements about a judicial interpretation. One reason why my right hon. Friend said that he wanted reform of the law was that he wanted clarity so that everyone would know where they stood. However, every step of the debate has shown confusion, not clarity. What we discussed in the previous debate and shall discuss in this one is our understanding of the Government's intent.

I understand that it is not the Government's intention to prosecute Mr. Le Carré. It would be ridiculous to do so, and no Government would attempt it.

Mr. David Owen (Plymouth, Devonport)

Do not be so sure.

Mr. Shepherd

The Bill is drafted in such a way that the Attorney-General still has that option. The matter remains unclarified. It would be useful if the Government, having listened to these debates, came forward with amendments to clarify the issue. Clarity is one thing, obfuscation is another; and much of the Bill is obfuscation.

Mr. Gorst

I suggest to my hon. Friend that, although they cannot admit it, the Government distrust the jury system. If the words "serious damage" were used, some cases that they might wish to bring would fall. On the other hand, if the word "damage" were used, unqualified, the jury would not be given the option—having heard the arguments in court—to bring in a verdict of not guilty. I fear that distrust of what juries may do may lie behind the Government's position.

Mr. Shepherd

I accept that point and I understand that the Government, feeling seriously and strongly about an issue that they believe causes serious damage, may fear that the definition may fail to meet the test of a jury. The Government therefore set the barrier of prosecution so low that it would be quite exceptional if a case failed to meet the test. That is why we always return to the Franks committee's definition of what should constitute the level of damage caused by leaked information which would trigger off a criminal prosecution that could render the leaker liable to two years imprisonment. That is what the debate has been about.

I respect my right hon. Friend's concern for the security of information that can damage us all as citizens. However, the way in which he has gone about the matter has not helped his cause. He has determined that no amendments should be taken and that there should be no discussion. That is counter-productive. He then imposes a guillotine which arouses suspicions that the Government are unable to argue their case on the Floor of the House. That damages not only the Government but the Conservative party. It is absurd that we cannot form a consensus on such an important issue. We have a common object—to ensure that information which seriously injures our national interests triggers off a prosecution which is likely to lead to the person who caused the damage being convicted and imprisoned. I have not heard any hon. Member dissent from that principle. It is all that we are trying to establish.

In grasping for so much, the Government have placed themselves in deeper difficulty. Had they been more measured about whom they actually wanted to catch, they would have received the whole-hearted support of the House. Now, however, the Bill is proceeding to the House of Lords under threat of a guillotine.

I shall make a point about this process because there may not be another opportunity. My right hon. Friend the Home Secretary will recall that the original 1889 Act—the first official secrets legislation—was introduced in the House by the Attorney-General. Anyone who has seen the performance of the Minister of State or the Home Secretary—I mean no disrespect—will appreciate why it was necessary for the Attorney-General to present such a complex legal matter to the House.

During our short debate on the possibility of the publication of works of fiction, there was a clear conflict over the legal interpretation of what the clause meant and whether the word "or" should be "and"—or, in the words of my hon. Friend the Member for Hendon, North (Mr. Gorst), whether we wanted "one" or "two". At the end of the day, the House was united in thinking that there was no doubt that the clause would trigger the prosecution of Mr. Le Carré—[Interruption.]—apart from my hon. Friend the Member for Banbury (Mr. Baldry), who took an individual view. Those were legal matters, and with the best will in the world we cannot say that my hon. Friend the Minister of State has inspired us with the confidence to use him to represent our interests in court. [Interruption.] The Government Whip calls out, "Steady on," but on a question of one's liberty, one seeks good advice. We feel that we have been missing good advice on the meaning of

I intended to read through all the passages referred to by the right hon. Member for Morley and Leeds, South and what he said about the Franks debate, because it is essentially to that that we have been returning. However, I know that my right hon. Friend the Home Secretary is familiar with the arguments. He was in the private office of the then Prime Minister—my right hon. Friend the Member for Sidcup and Old Bexley (Mr. Heath)—when the Franks committee was set up. He will have heard the drift of the arguments that the former Prime Minister adduced during the course of those debates. He may chuckle now, but only last week, he seemed extraordinarily respectful about some of the comments made by my right hon. Friend the Member for Sidcup and Old Bexley.

Of course, I support amendment Nos. 6 and 7, but I also want to speak to Nos. 20, 21 and 22. Amendment No. 20 removes the word "prejudices" from clause 2(2)(a) and inserts the words "causes serious injury" in line with the general theme of the arguments from both sides of the House. Amendment No. 21 inserts the word "defence" before the word "tasks" in line 37 of clause 2(2)(a) so that it reads: to carry out their defence tasks". That is an important point but not a major one. The Army carries out ceremonial duties, and performs a range of duties about which the revelation of information could be said to be slightly damaging, but that is in no way related to the armed forces' defence capacity. Amendment No. 22 is to leave out the whole of clause 2(2)(b). There is concern that, under the Bill as drafted, information vital for us to improve our armed forces' capacity could be ruled "damaging".

A case in point was when, during the Falklands war, the boots used by the Army rendered a high proportion of the Welsh Guards unfit for service. To have revealed that information would have been a wonderful signal to the Argentines, who would have known when confronted with a platoon or regiment that they faced only two thirds of the expected forces. On the other hand, if we are prepared to conceal for ever defence information such as that, we could never put the pressure on an Administration to improve the Army's equipment or material. The gain to our armed forces' capacity could be much greater.

Mr. Baldry

My hon. Friend talks lightly about ceremonial duties. I had a constituent who was murdered in the bandstand incident when the IRA blew him up and killed him. There is a definition of "harm". What harm my hon. Friend and those who support his amendment regard as acceptable before it becomes serious harm? I do not understand the distinction that he makes between harm and serious harm. He must explain what harm he thinks is permissible.

7.30 pm
Mr. Shepherd

I had hoped that the reference by the right hon. Member for Morley and Leeds, South to the Franks report was a shorthand method, as it were, of dealing with that. My hon. Friend the Member for Banbury (Mr. Baldry) claims that there is a definition of "harm" in the Bill. I am waiting for that definition to be spelt out. I have been looking for it. I have not found it in the Bill and if my hon. Friend will explain where it appears I will address my remarks to that. Part of the argument that we are making to the Government is designed to coax them into providing such a definition. Many of the harms that are said to exist are triggered off by, say, prejudice—that is why, at any rate as a pro-tern measure, I support Government amendment No. 86.

Mr. Baldry

The test of harm as an issue was canvassed thoroughly on Second Reading. Clearly, when one is talking about harm and serious harm—if my hon. Friend studies the Official Report of the Second Reading debate he will see that the issue was examined in detail—we go to my hon. Friend's definition of "damage" and "serious damage". Will he explain what damage he would allow without it becoming serious damage? He is arguing that it should be permissible to cause damage to the community so long as it is not serious damage.

Mr. Shepherd

On Second Reading we took the trouble to explain to my hon. Friend and to those who take his view exactly what the Government claimed was being done. We are simply trying to enact what the Government have said that the clause means. The Government rely on the description "serious damage" and "serious harm", and that is what we are trying to incorporate.

Mr. Hattersley

The hon. Member for Aldridge-Brownhills (Mr. Shepherd) has helped me on so many occasions that he will not object to my making a suggestion to him. Will he remind his hon. Friend the Member for Banbury (Mr. Baldry) that in clause 2(2)(a) we at least know how the Government define "harm." It is the prevention and inhibition of the armed forces from doing anything that they might want to do, no matter how trivial or inconsequential. Whatever definition of "harm" is superior to that, it is difficult to think of one that is inferior to that, for it is using the word in a different way from its common usage.

Mr. Shepherd

I am grateful to the right hon. Gentleman for that assistance. The expression "serious injury" or "serious harm" has a place in our preface to all these debates—the Franks report—and it was linked with an internal level of classification which was understood and could be argued by counsel. It was related to serious injury to the interests of the nation and corresponded to secret documents encompassing exceptionally grave damage to the nation. Under these proposals, it is ultimately the jury who determine the level of harm and whether it is serious or trivial. After all, I could make an argument to a jury that to comment that uniforms were unattractive constituted damage to morale. The jury would think that ridiculous and no serious prosecution could be mounted on it, but at the end of the day the jury will determine whether it falls within the criteria.

Mr. Aitken

My hon. Friend may be aware of the Official Secrets Act case in 1916, R v. Crisp and Homewood, which was known as the War Office tailors and fly buttons case. The gist of the case was that a War Office tailor was prosecuted for disclosing the contract prices of fly buttons on uniforms, and was correctly prosecuted. Undoubtedly that was a damaging disclosure of commercial danger in the somewhat limited world of tailors and prices.

In answer to the point raised by my hon. Friend the Member for Banbury (Mr. Baldry), I can think of no clearer example of a definition of what might be called damaging from one somewhat narrow viewpoint, which is different from the serious injury and serious damage point to which we are referring in connection with the amendments.

Mr. Shepherd

There is the old test of the difference between damage and serious damage. If I stub my toe, I can say that that is damage. If I break my leg, I can say that it is serious damage. One can then argue about that.

Mr. Buchan

In a sense the word "damaging" is absolute. A damaging disclosure, even if it harms only to a slight degree, remains damaging. So in a literal, linguistic sense, "damaging" might be something extremely trivial. That is why we want to amend it.

Mr. Shepherd

That is the point that we have been trying to make across the Floor of the Committee—that a very low level, almost anything, could constitute a damage. Our fear is that something trivial which could be accepted as slightly damaging or a little damaging should be characterised as seriously damaging.

This Bill is linked with the Security Service Bill. The important difference is that we often legislate in a vacuum in this country, whereas other countries do not. A great advantage that we have with this piece of legislation is that while it has caused some difficulty for the Government, we are not legislating entirely in a vacuum. We have had a committee of inquiry through Lord Franks which has given us an education in the problems that arise.

The Government should accept the concept that serious injury is the appropriate test to put to a jury. It is on that basis that the Government should prosecute, rather than on the basis of damage or prejudice or something of a lesser level. This is criminal law. We want to be sure that we secure prosecutions, but we must also feel sure in our minds that the Government have gone through the mechanics of trying to weigh up the damage and are confident that when they go forward for a prosecution they are targeted rightly and that the law is not used frivolously in front of juries to undermine its integrity, as the 1911 Act undoubtedly was.

Mr. Maclennan

The hon. Member for Aldridge-Brownhills (Mr. Shepherd) said that, in this context, we were legislating in a vacuum. That is not altogether so. We are legislating against a background of the public and international protection of fundamental rights and freedoms—the European convention on human rights, to which this country subscribes.

Much of our difficulty in comprehending the Home Secretary's approach to the amendment flows from the fact that he is trying to present himself to two different audiences. Sometimes he is trying to persuade the Committee that he is at heart really a liberal individual, and his intervention in the speech of the right hon. Member for Morley and Leeds, South (Mr. Rees) was designed to suggest that the Bill was confining the law. On other occasions, the Home Secretary tries to emphasise that his prime duty must be the protection of the nation from the serious damage that could flow from the wrongful disclosure of official secrets.

In the context of this group of amendments, we are dealing with national defence. The Home Secretary appears to be trying to argue that the mere mention of the words "national defence" is sufficient to enable him to throw overboard whatever liberal instincts he may have and that he can raise the concern that if we do not accept precisely his language, we are by implication putting at risk the national interest in national security.

After the debate we have had today on the test of harm and after debates on earlier occasions, the Home Secretary has to address the question what is wrong with the Franks definition. Why is it not appropriate to incorporate that in the Bill? The language was considered carefully by the Franks committee. I acknowledge that it was considered in the context of the official classification but the official classification was used in the Franks committee report to describe the categories of information which it was felt should be protected by the criminal law. It was in a sense a code. It was to explain exactly what Franks was trying to catch by the criminal law.

The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) made the point with greater eloquence and precision. The point was that Franks was specific in the language. I do not see that the mere severing of the ministerial certificate from the process has anything to do with the language. The language is clear and unambiguous and seems to cover the position adequately.

I ask the Home Secretary to address the meaning of the language and to give us a clue why he thinks it is not appropriate, and why he has to produce the test of harm, as he has done for the whole sphere of defence. If he sticks with the language which he has proposed, including amendment No. 86, to replace "prejudices" by "damages", he is at serious risk of not doing what I think he wants to do, which is to square the legislation with the European convention on human rights. I give him the benefit of the doubt.

Let me take the right hon. Gentleman through the argument. The European convention on human rights, which under article 10(2) guarantees the right to freedom of expression, carries within it a limitation of that right, understandably and properly. There may be restrictions of that freedom of expression, such as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety". I quote that extract, which is relevant to the question of defence.

That is not the end of the matter. Those words have been further interpreted by the European court, giving a much clearer understanding of what they are intended to cover, following two leading cases, the Handyside and Sunday Times cases, both of which involved this. Those cases provided that the test of whether the restriction is necessary in a democratic society is whether the interference complained of corresponded to a pressing social need and whether it was proportionate to the legitimate aim pursued". 7.45 pm

It follows that we are entitled to ask whether the language of clause 2 serves a legitimate aim, whether it seeks to meet a pressing social need and whether it is proportionate to that need. Those are the tests that would be applied if someone sought to take a case to the European court under the European convention. I put it to the Home Secretary that the damage provisions in regard to defence would not stand up. The point has been made so often in earler speeches that I need not repeat it at length. Unqualified damage, which can be in any given case extremely slight, cannot by definition reflect such a pressing social need as to justify interference with a right so fundamental as that of freedom of expression. At the very least, to satisfy the European convention rights, what is required is not just any damage but serious damage.

I pray that perhaps somewhat arcane argument in support of the amendments because it has not yet been adduced in the debate. I very much want our legislation to conform with our international obligations. I do not believe that it will unless the Home Secretary accepts the amendment.

Mr. Hurd

Is the hon. Gentleman aware of criticisms from that quarter of the existing law, which is much more comprehensive?

Mr. Maclennan

Yes, but this Bill, which will shortly be an Act with remarkably little stamp of Parliament upon it, will be the legislation which the European court will be called upon to interpret. I may have misunderstood the Home Secretary. The existing Act would certainly fall foul of the European court. The fact that it takes six or eight years to bring a matter to a decision is a major inhibition, which is why I and my right hon. Friends seek to incorporate the provisions in our domestic law. None the less, in giving effect to the provisions of the clause, the Home Secretary is not taking the opportunity to bring our domestic law into conformity with the provisions of public international law.

Mr. Gorst

Is the hon. Gentleman aware that the argument he is using will be greatly reinforced when we discuss prior publication abroad? There will be absolutely no doubt that, even if it is a matter of national security, if it has already been published abroad, although the pre-publication may have been damaging, publication cannot have added to it. So I would have thought that the hon. Gentleman's argument is valid.

Mr. MacLennan

I am grateful to the hon. Member for Hendon, North (Mr. Gorst); I agree with him. Perhaps that point will be made again. There are a number of places in the legislation where it is hard to demonstrate that the restriction on freedom of information which it entails can possibly be justified in terms of the perceived damage that would flow. That is really the root of the matter.

One asks oneself why the Home Secretary stands out for this extremely broad, all-encompassing word 'damaging" when it would so obviously allow successful criminal prosecution for the most minuscule disclosure. I can only assume that it is because he wants to retain a provision that can be used in terrorism. He wants to be able, as it were, to frighten those who are in any way connected with the armed forces into believing that they ought not to talk about what they do, however much it might benefit the public that they should. In fact, he is seeking almost to impose a duty of silence on those who are in possession of information relating to defence, because the damage test is so low that it cannot really limit the possibility of successful prosecution.

I reinforce what the hon. Member for Aldridge-Brownhills said about the duties of members of the armed services. Clause 2(2)(a) speaks of prejudicing the capability of … the armed forces of the Crown to carry out their tasks". Well, many of these tasks do not touch the security of the nation. The armed forces have representational roles and ceremonial roles, and, even in the normal course of events, they carry out tasks of a very humdrum kind that have nothing whatever to do with the defence of the nation, save for the fact that they happen to be being carried out by the armed services.

Mr. Baldry

The hon. Member, rather like my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), dismisses ceremonial tasks as if they were nothing. What does he say of those who clearly gave information to the IRA about the changing of the guard in Gibraltar? There could have been substantial loss of life in Gibraltar. The reality is that, sadly, there are in this world many people who wish to injure members of the armed forces, and it may well be that it is at ceremonial events that they are most vulnerable. To say that a ceremonial even is of no importance in this regard rather belittles the hon. Gentleman's argument.

Mr. Maclennan

I can answer that point most simply by saying that the hon. Gentleman's example concerns a course of action that would undoubtedly be caught by the form of words that we are proposing: disclosure which would cause serious injury to the interests of the nation". It does not matter to what sort of occasion, ceremonial or otherwise, the disclosure relates.

Dr. John Gilbert (Dudley, East)

Perhaps I can help the hon. Gentleman. The whole point about ceremonial events is that they are publicised.

Mr. Maclennan

The right hon. Gentleman speaks with the full authority of a former Defence Minister.

I think that the hon. Member for Banbury (Mr. Baldry) really has not addressed the fact that it matters not what the incident or the occasion—the test is whether or not there has been serious injury to the interests of the nation, and the circumstances the hon. Member describes would plainly fall within the amendment that we are advocating.

The Home Secretary has been speaking with two voices on this matter. Outside the House he has been speaking about serious damage. He has tried to convey to the world at large—as, indeed, it has to be said, he has done in earlier debates when we have not been focusing precisely on this issue—the impression that he is concerned only with serious damage. But the language in the Bill does not reflect what he has said. All that we are asking is that the Bill reflect his expressed intention. If it does not reflect his intention, it expresses a defence of a kind that will enable the prosecution to bring charges of criminal behaviour carrying penalties of up to two years' imprisonment for what, by any objective test, would be seen as the most trivial of revelations.

Mr. Aitken

Although we are operating under the shadow of the guillotine, I think that we are performing a very valuable exercise in this line-by-line scrutiny, which, as the hon. Member for Caithness and Sutherland (Mr. Maclennan) rightly reminded us, is all to do with language. The hon. Gentleman and others have covered so much of what is already familiar ground that I can be very brief and give just three reasons for my urging the Home Secretary to accept one or other of these "serious damage test" amendments.

First, I believe that this group of amendments really is the litmus test of the Government's good faith. We have heard from Member after Member about what the Government have said, and we have been given chapter and verse at the Dispatch Box, in earlier debates, and outside the House. Ministers have used phrases like "serious harm" and "serious damage"—not only my right hon. Friend the Home Secretary but also, most recently, two nights ago, the Leader of the House.

The Government have gone abroad publicising the notion that this Bill is all to do with occasions when the interests of the nation are in some way or other seriously damaged, yet this very phraseology is not in this ill-drafted, ill-thought-out clause. I ask my right hon. Friend to explain why the Government are willing to use words at the Dispatch Box and on platforms in the country, yet not put them in the Bill. We cannot have a situation in which one of Her Majesty's principal Ministers is prepared to be a lion at Cambridge university and a lion at the Dispatch Box, but a lamb when it comes to the Cabinet Committees that do the drafting of these Bills. He will be open to the charge of being "Mr. Facing Both Ways" if he cannot put into the Bill the very words that he and his colleagues have been using outside the House.

This word "damaging", which is in the Bill at the present time, is weak and unsatisfactory in terms of the criminal law. My hon. Friend the Member for Banbury (Mr. Baldry) is the only person here who seems to think that it is not. One has only to look at how unsatisfactory it is in the civil law to start to recognise how much more unsatisfactory it is in the criminal law. In the civil law, of course, there are damages and damages. Consider, for example, recent libel awards. They stretch from £1 million in the case of Mr. Elton John v. The Sun down to derisory amounts—it used to be a farthing; now it may be £5—in small cases. There is huge scope for a jury in awarding damages.

If there is this wide scope in civil law, how dangerous would it be in the criminal law. Here we are talking about the liberty of an individual in the dock, on a serious criminal charge of disclosing information—information that is merely damaging, without any qualification or clear definition. On the civil liberties issue—giving a defendant a clear and adequate defence—we must do better than the word "damaging".

But I am not thinking only of the interests of defendants. I am not exactly a paid-up member of the royal society for the protection of Attorneys-General: nevertheless, I hope I have some genuine concern for the position of the Attorney-General or, in some cases, the Director of Public Prosecutions, in trying to operate this clause. As it stands, with this vague word "damaging", the law is as long as the Attorney-General's foot, and almost anything can be argued, and no doubt will be argued, by departmental Ministers and departmental civil servants. People over-reacting to a disclosure will be able to say that is has been seriously damaging—or merely damaging, since the word "seriously" is not in the Bill.

There have been any number of cases through history in which the Attorney-General has been pushed by departmental pressures into prosecuting on the slenderest of grounds. I referred in an intervention in the speech of my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) to the case of R v. Crisp and Homewood, an ancient but still relevant case because it related to defence matters. That was the case of the War Office tailors who disclosed contract prices for fly buttons on uniforms. They were prosecuted for disclosing matters which I am sure that the War Office argued were damaging to the commercial interests of the War Office and the world of defence. Surely no one could seriously argue that the Bill is supposed to cover such a matter, yet it could perfectly well be interpreted that the word "damaging" unqualified was a mandate for more prosecutions of the type of R v. Crisp and Homewood.

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Mr. Baldry

My hon. Friend says that "damaging" is unqualified. It is very much qualified by saying damaging if … it prejudices the capability of … the armed forces … to carry out their tasks". I fail to see how fly buttons could conceivably prejudice the capability of the armed forces to carry out their task.

Mr. Aitken

My hon. Friend is on to a good point and I concede it. But let me take him a little further down the Bill. The definition of damaging enters territory that is still worrying. In line 41, damaging is defined as something which jeopardises the interests of the United Kingdom abroad". That is an extremely wide and vague definition.

Subsection (4) defines defence. Does a defence matter include defence sales? It clearly does. We are entering the world where one could disclose something that is damaging to defence commercial interests, and that is highly unsatisfactory. The Sunday Telegraph case in which I was involved was a defence matter in one sense, because it involved British arms sales to Nigeria. Under clause 2, it could perfectly well be argued that those who disclosed those matters did things that were damaging, in the sense that minor damage was caused by the embarrassment of diplomatic interests. It was covered by the broad definition of "defence" and "damaging". I am sure that this area needs tightening up and the best way in which to do so is by accepting the Opposition's amendment—which applies the "serious harm to the nation" test, or amendment No. 22 which simply knocks out line 41 onwards and makes many of my fears much less relevant.

At last the Government have at least made one concession. They have acknowleged that their drafting is less than perfect because here we see the first ever amendment to an Official Secrets Bill or Security Service Bill. The Home Secretary may star in a Bateman cartoon as the Home Office Minister who admitted that this parliamentary draftsmen were less than perfect. Amendment No. 86 takes out "prejudices" and inserts "damages". We must give a hearty cheer for this moment of repentance, but the Home Secretary needs to repent more.

The word "damaging", unqualified as it stands, is inadequate to those who might face criminal charges under it. I hope that, even though I have long since given up any hope that Ministers will listen to the House of Commons, the other place will take these criticisms seriously and write into the Bill the kind of protection that was envisaged by the admirable Franks committee and insert the serious harm test.

Dr. Owen

I rise to support amendment No. 20 which would make line 36 read: it causes serious injury to the capability of, or any part of, the armed forces of the Crown". I think that I am right in saying that, since the Franks committee reported, whenever such issues have been discussed there has been near-unanimity that special provision should be made for defence information. It is also fair to say that, at all times, the phrase ''serious injury" has been accepted in all parts of the House as applying to defence. This is the first time that that phraseology has come under question.

When the right hon. Member for Morley and Leeds, South (Mr. Rees) was Home Secretary discussing the various drafts and Green Papers, there was one area in which there was no dispute—in terms of defence, it had to be serious injury.

There was always an argument, which we shall deal with when we debate the amendments to clause 3, over international affairs. That is a harder issue, because it deals with other Governments. We can argue whether the word "jeopardises" is strong enough. I put my name to the amendment that deals with that more to probe than to criticise. I would prefer "causes serious injury to', but I could live with the word "jeopardises". However, I do not think that I can live with the wording that the Home Secretary is now putting forward. I welcome "damages" because it is preferable to "prejudices", but it must have an additional word, and that should be "seriously".

Let me explain why by dealing with an area of considerable interest and some controversy. Nothing could be more central to Britain's defence capability than our nuclear deterrent. In 1969, when the issue of Polaris first came up, there was a question about whether the then warheads would be capable of penetrating the antiballistic missile defences around Moscow. The Ministry of Defence, then under a Labour Government, began to discuss whether it might be necessary to harden the warheads so that they could penetrate. That was considered at the time to be highly classified information. It was so classified that it was felt that we should not even discuss it with the Americans, so it had the classification "Top secret. United Kingdom eyes only".

When a Conservative Government came in in 1970, there was a long period during which they considered whether the anxieties about the penetration were so great that they should go for Poseidon and stop continuing with the Polaris A3 missile. Again, that was considered to be a matter of extremely important intelligence information and it was highly classified. I do not know its classification, because I did not see it, but I do not suppose that it was any different. The then Government made a decision that they would not buy Poseidon but would go ahead with a development to harden the system.

Mr. Rees


Dr. Owen

I do not know whether that was its name at that time. It may well have been. There was a different code name for it in 1959. It was certainly code-named Chevaline in 1974 when a Labour Government took office. But what is not often realised is that the decision was made in secret by a Conservative Government. I have no objection to that. It was thought that it should be secret because we were not about to intimate to the Soviet Union that we did not think that our existing system could penetrate the Galosh defences around Moscow.

That decision then came before the Labour Cabinet and there was the correspondence between the right hon. Members for Blaenau Gwent (Mr. Foot) and for Chesterfield (Mr. Benn) about what did or did not happen at the Cabinet meeting in November. That is an important issue. I am on the side of the right hon. Member for Blaenau Gwent, if for no other reason than that I find Barbara Castle's diaries to be extremely accurate. I figure in a lot of them and her accuracy must be due to the fact that she had shorthand. I do not always agree with her conclusions, but in terms of an accurate description of what was going on in that period, I suspect that it will prove to be better than the Cabinet Secretary's, who did not take shorthand and had a tendency to make the minutes of the Cabinet meetings reflect the briefing that had gone to the relevant Ministers. More frequently, one used to read what one was meant to have said according to the briefing that one had been given rather than what one actually said. However, I leave all that, to come to a serious question.

That decision was reported to the Cabinet, as it was right to do, because at that time the cost was about £220 million. It was agreed by the Cabinet and the programme went forward. There was no secret about that, because it was a continuation of previous Conservative Government policy. However, all the discussions were conducted in secrecy. In 1977, the decision came up for review by a small group of Ministers, which has often been criticised since. The reason that the decision came up before a small group of Ministers was that it had already been taken. The cost escalation was considerable. At that time, the question was whether the programme should be cancelled. That was considered seriously, because the cost by then was £700 million and the cost eventually became £1 billion.

One of the major arguments used against cancellation was its effect on the capability of our nuclear deterrent. It was felt that if one came forward and announced that one was cancelling a programme on which one had spent £700 million and which had been started to improve the penetration of missiles, one would flag to everybody—and very visibly to the Soviet Union—that one's existing deterrent was not effective. Nobody argued more strongly against cancellation than the Ministry of Defence and the intelligence community. They argued powerfully that it was absurd to cancel the programme, having spent so much money on it.

I was in two minds about whether we should cancel the programme. The anti-ballistic missile treaty had been signed by then, we were dealing only with the rather inadequate Galosh system around Moscow and I did not believe in the Moscow criteria. However, I found the arguments against disclosure extremely powerful and they were arguments that finally persuaded me. There was nothing disreputable or discreditable about the Government deciding—the decision was made for them at almost technical level, as most classifications are—that this classification should be highly secret and that disclosure would be deeply damaging.

There was a change of Government in 1979. At the end of 1979 and beginning of 1980, the then Secretary of State for Defence—now Lord Pym in another place—came to the House and suddenly announced not only that the project was near to completion—which he was entitled to do—but that the project was called Chevaline. I remember hearing that announcement at the time and being utterly staggered that he could do that. On what authorisation did Francis Pym suddenly announce the name of the project? It was one of the most highly classified secrets of the previous 10 or 11 years. I presume that he decided to declassify it himself, rather as Winston Churchill declassified documents at frequent intervals. Whenever I have written on defence, I have frequently declassified information before I make a judgment.

Lord Pym made a judgment. I believe that he did so for purely party political reasons to justify the decision to buy Trident missiles and to embarrass the Labour party for the fact that it had put the interests of this country first and had been ready at all times to modernise the deterrent—and it was right to do so. He made a cheap, party political point. In the process, he seriously damaged the principle of the integrity of the classification system and of the trust that had hitherto existed between Governments. That was a bad day for good government in this country.

However, Lord Pym made a judgment, and I presume that he would argue that he did not damage the capability of any part of the deterrent when he made that decision. A year before, however, if anybody had revealed Chevaline, a serious question would have been whether a prosecution should take place. That shows that two Governments, within a year, were taking completely different views on a serious question about capability.

8.15 pm

The reason for that story is that it is necessary for the House to make clear what it believes is "damage". Damage is in the eye of the beholder. We should be clear that we are concerned with more than just damage, that we are concerned with serious damage. I would have argued that it was seriously damaging at any time to reveal that project until it had been fully deployed. I could not be persuaded that it was right to announce it. If people wanted to speculate about it, that was reasonable, but in such areas, it had normally been the rule that one did not reveal the full modernisation of weapon systems. The point is that the Secretaries of State for Defence—Fred Mulley, a man of the utmost probity and distinction, who always put the defence of this country first, and Francis Pym, to whom I apply the same terms—made fundamentally different judgments on that question.

How is a jury to make up its mind on such questions if the best that the House of Commons can do about what we think are the criteria is to replace the word "prejudices" the capability with "damages" the capability? The vignette of history points in the direction of greater clarity about what is at issue. One can argue the case that, as the weapons system is deployed, the importance of revelations about its effectiveness and capacity diminish. The further one is from deployment, the more it is important to keep it secret. It is a moving situation.

There has been a great deal of cynicism, which reflects the difficulty of establishing criteria here. We must say to the Home Secretary—I know that he is more worthy than anybody else—that we do not have sufficient explanation here. The words that are used in the Home Secretary's explanation for the Bill in the House of Commons cannot be used in a court of law. One cannot call in evidence the fact that the Home Secretary said that "damaging" really means "seriously damaging". I am not a great lawyer; the Home Secretary has picked me up on that before. The words, therefore, in the Bill are very important. I hope that, having moved on prejudice, presumably having listened to the words of Sir Leon Brittan, he will now accept that if, as I believe will happen in the other place, the word "seriously" is inserted, it should not be removed.

Mr. Buchan

On the right hon. Gentleman's point about whether language spoken by the Home Secretary or anyone else can be called in aid, it cannot. The judge must interpret the law as it stands. The very fact that what is said in the House cannot strengthen a judgment means that if the clause is passed without the level of damage being qualified, it will be assumed it means any level of damage, however minor.

Dr. Owen

If that is the case, it does not fit easily with the rest of the clause. I must say to the hon. Member for Banbury (Mr. Baldry), who intervened and mentioned the tragic case of the ceremonial in Gibraltar, that there have equally been other ceremonials, such as the Horseguards incident, which would be covered by the words "loss of life." That is right and I do not think that any of us could object to that. The clause also refers to injury to members of those forces or serious damage to the equipment or installations of those forces", with which I have no problem at all. If we can use the phrase "serious damage to" for such matters, why on earth can we not use "serious damage" with regard to capability? The clause does not make sense.

In clause 3—I do not wish to prejudice any discussion on that clause—one sees the phrase: it jeopardises the interests of the United Kingdom abroad". Can we merely live with the words: a disclosure is damaging if— (a) it damages the capability of, or any part of, the armed forces of the Crown"? That is not a sufficient test on which to have someone up on a criminal charge and have them imprisoned. Yet that is what we are talking about for a range of information and classifications on which, as I have already said, two successive Secretaries of State can take diametrically different views, when the capability of the defence of this country is involved.

Mr. Budgen

Does the right hon. Gentleman agree that what will actually happen when this Bill becomes an Act is that it will not be applied even-handedly, but the Government of the day will make an arbitrary selection?

Dr. Owen

Yes, and the matter will go before a jury, and we shall then see what we saw in the Ponting case. A judge will give a direction to the jury in law which will be totally chucked out because most of the jurors will have enough sense to realise that they are not prepared to pass judgment that makes them look like asses. That is the danger.

We all know that the last Official Secrets Act was one of the worst Acts that this House has ever passed. We have all hung our heads in shame because it was rushed through, because its interpretation was squalid, because all of us—in successive Governments—have kept it going for decades too long and because people have suffered gross injustice. However, such a Bill is now with us in this House. We have all been talking about historical examples, but we are probably on the path that is most likely to lead to the courts.

I feel strongly about clause 1 and about the small but important group of people who are employed in the security and intelligence services. I still think that we have got that provision wrong. Not providing a public interest defence for those people is a serious omission—we all know that defence information is being leaked all the time. This provision will come to court. It will be the issue on which people will go behind bars. There is a great feeling in the House that the current words are not sufficient. I hope that when the Home Secretary gets his way and moves that the word "prejudices" become "damages", he will accept that that is only a partial step and that we shall not rest until the word "seriously" precedes the word "damages".

Mr. Hugh Dykes (Harrow, East)

We have not only heard fascinating and subtle allusions and references to incidents 10 and even 20 years ago about major projects and the ways in which they ere eventually revealed; we have heard a whole raft of extremely persuasive speeches from hon. Members of all parties urging my right hon. Friend the Home Secretary to accept this cluster of amendments.

I shall speak only briefly—I had not intended to speak—but I hope to make a helpful contribution. This is an opportunity for my right hon. Friend to accept the amendments and thus to do what he originally intended to do, which was to provide a firm, tangible definition of "serious harm" or "serious damage". That was manifestly his intention and that of his Department. I guess that that would be fully supported by the Law Officers, but one should not quote them without asking their permission or opinion—only they could express it.

The House will have been drawn by the comments of the hon. Member for Caithness and Sutherland (Mr. Maclennan) about the background of the European convention on human rights in relation to the clause to which he referred. The present wording of clause 2—and especially the main part that we are now considering—is a disgraceful piece of drafting. I apologise to my ministerial colleagues for using that strong adjective. Increasingly in recent years, and irrespective of party colour and Government, the House has been worried about sloppy drafting of all sorts of Bills arid the increasing tendency for such important measures to go through unamended because of the processes and pressures that we now face.

I say that against the worrying background that none of the provisions ever emanates from an outside committee of inquiry or investigation or a Royal Commission. We all dreaded Royal Commissions in the past because their deliberations took so long, but none of this legislation comes from such bodies. It all comes from internal governmental investigation, action, deliberation and suggestion. Because that process always emanates from internal Government sources, and because it reinforces the need for amendments to be made to reflect the will of the House, we are left with shoddy drafting. To use four different verbs in clause 2, dealing with the harm aspect, is unacceptable. I hope that my right hon. Friend will reconsider that.

I feel strongly about removing the discretion of the quadrupartite basis of what we have been discussing today—the European convention on human rights—about the definition and basis of Franks, which is still held in the greatest respect by parliamentarians in this Chamber and in the Upper House, and by people outside as being the right basis on which to proceed, and about the amendments and the original terms and undertakings given in the White Paper and on Second Reading.

I do not agree with the reference of my hon. Friend the Member for Banbury (Mr. Baldry)—I hope he does not mind me referring to this—to the use of the word "harm", when he said that there is no way in which one can establish the right level of harm or damage because a ceremonial occasion might turn out to be a serious emergency causing injury and death. With respect, that was a distortion. My hon. Friend mixed up two totally separate manifestations of human action.

I hope that, with all those arguments having been deployed, if my right hon. Friend the Home Secretary catches your eye later, Sir Paul, he will reply to some of those serious comments. I cannot understand why, in this mature parliamentary system, where there is no outside corrective constitutional court system to say that the Government are overdoing it, are going too far or do not have a mandate or basis for their argument, the Government cannot from time to time accept a good suggestion, even if it comes from the Opposition, or an amendment tabled by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd). I cannot understand why they will not accept his amendment and say that that is the basis on which they will proceed. Why is that regarded as a sign of weakness?

We are told nowadays that the regular meetings of the Cabinet are shorter and that most things happen in Cabinet or ministerial sub-committees and that there is little discussion because it wastes time. Then, when the measure comes to the Floor of the House, it is guillotined because, after all, it wastes time. Indeed, several hon. Members said that in Monday's debate on the guillotine motion. My right hon. Friend the Member for Chingford (Mr. Tebbit) said that we were wasting time considering such matters. I am sure that my right hon. Friend—

Mr. Budgen

Some tribute should be paid to the Government. They took away the right to silence in Northern Ireland by order, in three hours, without any discussion. Therefore, the idea that the Government are prepared to waste time in such fruitless activities is a totally false allegation. There is no evidence that the Government seriously believe in parliamentary discussion.

Mr. Dykes

On careful and meticulous reflection of what my hon. Friend has just said, I feel ashamed because he is right. I misunderstood the whole basis on which this new era is unfolding.

Mr. Gorst

My hon. Friend may be completely wrong about this. Having heard the weight of the argument, my right hon. Friend the Home Secretary may well, within a matter of minutes, be about to concede what we have been arguing, thereby earning a tremendous amount of kudos for this Government's handling of the Bill.

Mr. Dykes

I take the extremely subtle hint given by my hon. Friend the Member for Hendon, North (Mr. Gorst) that I should not go on for too long. I agree that there is now the chance of that happening, so the sooner my right hon. Friend the Home Secretary can address us the better.

I return to the point made by my hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen). The interdiction on Sinn Fein spokesmen appearing on radio or television was announced in the media. That was the quintessential example of not wasting time. As a summit of not wasting time, it was extremely impressive.

Mr. Winnick

Does the hon. Gentleman agree that he is doing no service to the Home Secretary? If the Home Secretary conceded anything, it is likely that he would be dismissed within about a week. Does not the hon. Gentleman care about the Home Secretary's continuing career?

Mr. Dykes

I care in all ways, but I care above all about my right hon. Friend's justified respect as a liberal Conservative politician—although the right hon. Member for Morley and Leeds, South (Mr. Rees) asked, "Is he, or is he not?" Unless someone else, Sir Paul, catches your eye in the meantime, I think that my right hon. Friend the Home Secretary is about to rise to his feet to prove the hon. Member for Walsall, North (Mr. Winnick) wrong.

8.30 pm
Mr. Hurd

I hope that we do not start from the proposition that this clause substantially reduces the weight of criminal law on soldiers, sailors, airmen and officials of the Ministry of Defence. There is a wide discretion about prosecution, and that discretion will be substantially narrowed. The argument is about whether it should be narrowed even further.

The amendments would alter the basic structure of the Bill. The Government's approach, which differs from that of the Franks committee, has been to select from the whole mass of Government information that which needs to be protected, and then to define what that is in statute on the basis of whether disclosure of that information could do serious damage to the public. I have said that over and over again, and many members of the Committee have quoted that and other points accurately. We are removing from the scope of the criminal law the wide discretion that the prosecuting authorities—not the Government—have, and putting it first on Parliament and then with jurors. We believe that the criminal law should apply to harm that is serious. That is why the winnowing process has been rigorous. It has winnowed out not just the trivia but the Budget secrets and the kind of Cabinet documents to which the right hon. Member for Morley and Leeds, South (Mr. Rees) referred. Those will no longer have the protection of the criminal law.

What is left to be covered by the Bill is a minority of the range of Government information at present protected by the law. Included in the Bill are such narrow sectors as interception warrants and other warrants, to which we shall come tomorrow, where we believe that disclosure per se is harmful—members of the Committee will want to argue about that—or in other sectors where we ask Parliament to set a test of actual harm. We do not believe that within those sectors, which we are asking Parliament to select as sectors where disclosure can cause serious harm, there should be a test within a test. There should not be a subdivision within those sectors so that there is a subdivision of harm.

Mr. Rees


Mr. Hurd

I will give way to the right hon. Gentleman in a minute. First, I should like to develop this case, which is the core of the argument.

It is true that the Franks structure was different, but it would be hard to argue that, on balance and on the whole, it was a more liberal one. I dislike the word "liberal"—I have never claimed to be a liberal Home Secretary and I know that when people describe me as one, they will say in the next sentence how tyrannical and Fascist I am being. Nevertheless, it is hard to argue that the Franks structure is more open or liberal. One cannot pick out a particular building block from the Franks structure without reference to the building of which it is part. Franks recommended the test of serious injury or harm to the interests of the nation, but did so within a framework entirely different from that which we are suggesting. The essential link here is not with the classification of documents but with ministerial certificates.

Franks suggested that the range of sectors to be protected by the criminal law should extend across the board, including many sectors that are now to be liberated. He also suggested that the Minister should have the last word as to what was or was not serious damage. Our approach is different. It is to restrict drastically, compared with Franks, the range of information that can be protected, by eliminating whole sectors where it might be argued that there was serious damage but where we do not think that there could be, and to ask Parliament to define tests, leaving the jury to decide. The Franks philosophy would lead to a wider scope for the criminal law than we propose. It is hard to apply that philosophy and the wording about serious damage without taking that into account.

The reference by my hon. Friend the Member for Hendon, North (Mr. Gorst) to our instructions for the jury was a little strange. It is a shame that neither my hon. Friend the Member for Orpington (Mr. Stanbrook) nor my right hon. Friend the Member for Chingford (Mr. Tebbit) is here, as both have chided me for showing a naive trust in juries and getting away from the system of ministerial certificates.

Mr. Gorst

I should be happy to withdraw my suggestion immediately if my right hon. Friend would only make a distinction between serious and ordinary damage.

Mr. Hurd

I have tried to explain our reasons for adopting the different approach of asking Parliament to define and not allowing the test of serious harm to apply across a much wider board.

Mr. Rees

I agree with much that the Home Secretary has said about the difference between the Franks recommendations, classification and so on, but we are talking about section 2, which concerns defence. The Franks report dealt specifically with this and said that material that would not cause serious damage should not be covered. Will the Home Secretary apply this to section 2 rather than to the wider aspects of the Bill?

Mr. Hurd

Under the Franks recommendations, the Secretary of State for Defence would be the judge of that. That is a substantially different view from ours.

Mr. Budgen

I genuinely disagree with some of my hon. Friends, and I admire my right hon. Friend's wish to submit these judgments to a jury, but is there not a danger that the decision to prosecute will be arbitrary and political? If the Government simply have the test of whether it is dangerous or damaging, rather than seriously so, when a particular Minister feels that his amour propre has been pricked he will be anxious to prosecute the very person responsible. Very often, less serious matters will be left unprosecuted. It is wrong that the criminal law should be subject to such a political decision.

Mr. Hurd

I have not often wished that my hon. Friend could become a Law Officer of the Crown, but I wish so now. As many hon. Members know, that is not the way in which decisions to prosecute are taken. We propose a system which is much less political and arbitrary than one in which the crucial document is the ministerial certificate. Ministers are out of the process once Parliament has approved the Bill.

Mr. Richard Shepherd

There is universal approval—apart from my right hon. Friend the Member for Chingford (Mr. Tebbit), who will be tabling his own amendment—for reverting to the jury system. After all, cases arising under section 1, which is about espionage, treason and the most damaging sorts of information, have always been in front of the jury, so my right hon. Friend the Home Secretary is reverting to a process that many of us believe is appropriate for our constitutional and legal arrangements. That is to be applauded, but why does he now back off and say that it follows from that that the test should be only "damage" and not "serious damage"? My right hon. Friend is not addressing himself to the distinction between the two.

Mr. Hurd

I am addressing myself to the innumerable comparisons with the Franks report, one of which was made by my hon. Friend.

The hon. Member for Caithness and Sutherland (Mr. Maclennan) and my hon. Friend the Member for Harrow, East (Mr. Dykes) both mentioned the European convention on human rights, and we have looked into the matter. I do not believe that we shall run into difficulty on that, and if there is any, it will be much less than there is under the present law. My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) was a little scathing. Like my hon. Friend the Minister of State and myself, he is a layman, but we take legal advice on legal matters and when that legal advice and what we say is challenged. we reinforce it as best we can. My hon. Friend was therefore a little harsh on that point.

Mr. Foot

The Home Secretary continues to refer to advice from the Law Officers. Does he not recall that time and again in this debate we have asked that the Law Officers should be here? I cannot recall when we have asked that the Law Officers be present to answer debates or discuss matters over which there is great confusion when they have not been summoned. Previous Administrations have always been prepared to summon them. Why have they not been summoned to these debates?

Mr. Hurd

I rest on what I said about the process by which Ministers obtain and then, if necessary, reinforce legal advice. The right hon. Gentleman may shake his head, but he has been in this position himself. He knows what happens and he knows all about the role of the Law Officers.

Mr. Higgins

I recall vividly an occasion when the late brother of the right hon. Member for Blaenau Gwent (Mr. Foot) appeared before a Finance Bill Committee. We had been up all night, but he had not. He delivered a long oration about the Law Officers' opinion. Surely there are many precedents for Law Officers giving a view. On a more substantive point, are we to understand that every time there is thought to be damage within the context of this clause, no matter how trivial, the prosecution will proceed?

Mr. Hurd

Of course not. My right hon. Friend was right in his first point. There are many precedents.

Mr. Hattersley

With regard to the question raised by the right hon. Member for Worthing (Mr. Higgins), does the Home Secretary understand—because this is at the heart of our discussions—that we are not concerned with assurances that the Government will not prosecute? We are not here to read the Government's mind and intentions. We want a provision in the Bill to make trivial prosecutions impossible. The Home Secretary must consider that.

Mr. Hurd

I shall come to that.

Mr. Budgen

Are we to understand that the question whether a prosecution should take place will depend not on whether the case is serious, but on whether in an arbitrary or somewhat detached way the Attorney-General decides to prosecute?

Mr. Hurd

It will be carried out in the usual way. Whereas the prosecution authority has just about absolute discretion under the present law, under the terms of the Bill it will be restrained within the tests of harm.

The wording is very important. I do not deny that. It is right that ministerial statements and press releases are not relevant. We started with the word "prejudices", which is in the White Paper. The points that have been made suggest that that might be taken as setting the test of harm at a lower level than we intended. Government amendment No. 86 is intended to remove that concern and has been welcomed today. It is one of the few propositions before the Committee which has unanimous support.

My hon. Friend the Member for Banbury (Mr. Baldry) dealt with the point about trivia raised by my hon. Friend the Member for Thanet, South (Mr. Aitken). There was a prosecution in 1916 under the Official Secrets Act 1911. I cannot conceive of any demented prosecuting authority which would suppose that that case damaged the capability of the armed forces. I would say the same about the Smith's lawn example referred to by the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley).

The right hon. Member for Sparkbrook referred to corruption at a royal ordnance depot. I cannot understand how that revelation could damage the depot's capability. I can understand why the corruption could damage it, but we are concerned with the revelation. On the basis of the example, there would be no likelihood of the depot's work being disrupted or that it would be possible to prove that as a result of the disclosure the capability of any part of the armed forces would be damaged, let alone prove that the person making the disclosure knew or had reasonable cause to believe that that would happen. It would be impossible for the prosecution to act in the trivial examples which have been suggested today.

The hon. Member for Paisley, South (Mr. Buchan) raised a different point. I am sorry that I was slow—

Mr. Buchan

The Home Secretary certainly was slow.—

Mr. Hurd

—in teasing from him exactly what he was talking about. He explained himself very clearly after a while. In practice, he is doing less than justice to the arrangements between the Ministry of Defence and the local authorities in his area. Those arrangements ensure that the circumstances which he described could not occur. The contingency arrangements are available to the public and there is no question, as I understand it, of a leak being kept secret.

8.45 pm
Mr. Buchan

The Home Secretary corrected me and said that Windscale was not a defence matter and therefore did not come under this clause. He is wrong. It was producing plutonium. That is why the leak was kept secret—so as not to offend the Americans. That falls foul of the next clause. The Home Secretary said that it could not occur, but it did. That was the point that I was trying to make. No assurances have suggested that if the leak occurred on the Clyde it would be made known. There is no reason to assume that. Most importantly, if we leave the definition unqualified and it is left to the Government to intervene and decide when a case should be brought, or if it is left to the law, the law will follow on a low level of intervention.

Mr. Hurd

The hon. Gentleman directed me away from Windscale to his worries about the Clyde. I have dealt with those. His local knowledge is greater than mine, but I am advised that the contingency arrangements and the public nature of those arrangements make the case that he describes impossible.

The hon. Member for Paisley, South was right about the Bill. I concede that it would not be possible to defend a disclosure which could damage the capability of the armed forces on the grounds that there was a wider public interest. That is perfectly true. That is the argument for a public interest defence which he deployed earlier. I do not believe that it is sensible or safe to allow damage to be done to the capability of the armed forces and then to argue later, once the damage has been done and is irreparable—once the horse is out of the stable—whether there was some other justification which the defence might argue. The harm would have been done past recall and the lawyers would be arguing whether there was justification.

The right hon. Member for Sparkbrook referred to my comments in Cambridge. We may have an opportunity to refer to that again in better order. I will gladly do so because my points were just. It is not right for the Committee to provide that harm, however drastic, could be done and later question whether the misconduct of other officials, however trivial, could be used as a justification. That is not safe or sensible.

Mr. Hattersley

The Home Secretary should begin to tell us what the Bill says rather than what he hopes it says. He refers to harm having been done beyond recall, but the clause refers to harm that is likely to be done. It is an hypothesis of harm. The idea that harm has been done beyond recall is wrong. It is appalling for the Home Secretary to say that that appears in the Bill when it does not.

Mr. Hurd

I was harking back to the public interest defence, where it would be perfectly possible under the Opposition amendments for irreparable harm to be done before there was any question of justification.

My hon. Friend the Member for Aldridge-Brownhills made an important point about the definition of the tasks of the armed forces. Although he did not make the point, we used language in the White Paper which is very similar, or perhaps identical, to his amendment. We tried to see whether we could use the concept of defence tasks in the definition of harm. The trouble is that we were advised that that would not ensure that the unauthorised disclosure of information about the capability of our armed forces in Northern Ireland could be protected. Our forces are not there defending the kingdom against external attack—they are properly and necessarily there in aid of the civil power. As a matter of law, it would not be clear that a reference to defence tasks, which might otherwise be a tempting answer, covered such a situation. I am sure that, for the reasons that have been given, the Committee would not want to accept an amendment which had that unintended effect.

The hon. Member for Caithness and Sutherland also put his finger on a point that the Committee should consider. We considered very carefully whether one could disentangle the different tasks of the armed forces, and separate their ceremonial, catering and certain other functions from the sharp end. We came to the conclusion that that could not be done sensibly, responsibly or coherently.

Mr. Maclennan

The right hon. Gentleman tries to dismiss as irrevelant or already taken care of my point concerning the European convention, but it does not have an escape clause dealing with the armed services. The convention deals with national security, territorial integrity and public safety—that is the "serious injury" that we are trying to import into the Bill. The Home Secretary says that he has thought about that aspect and has taken it into account. He does not have to rely on my interpretation of the convention. The view is widely held among academic and practising international lawyers that the Home Secretary has got it wrong.

The right hon. Gentleman says that he has taken advice, but I ask him to reconsider. A committee under the chairmanship of Lord Deedes specifically examined the matter, as did many international lawyers—including the late Paul Sieghart, who was a great expert in the matter. They all considered that the Bill's provisions are wrong and will land us back in the European court. The right hon. Gentleman constantly asked the Committee to accept his word that the Bill is all right, but it is not all right and anyone who considers the matter carefully knows that it is not.

Mr. Hurd

That is why I intervened to ask what news there was of trouble under the existing law. The hon. Gentleman admitted that he had none because it takes so long to get a case to court. I shall do what I told my hon. Friend the Member for Harrow, East that I would do: I will reinforce the advice that I have received and return to the matter before the Bill leaves this House. I rest my case on the advice that I have received, which I believe to be correct.

My hon. Friend the Member for Thanet, South (Mr. Aitken) asked about the sale of defence equipment. Defence sales are not included in clause 2(4) and I do not think that they could be brought into it. My hon. Friend the Member for Torbay (Mr. Allason) was worried about notification, but as he is not in his place it will be more sensible to write to him.

Listening to the historical analysis given by the right hon. Member for Devonport, I was puzzled. He told us the Chevaline story and explained how two Secretaries of State in different Governments, but within a reasonably short time of one another, took fundamentally different views of what they could properly authorise themselves to disclose. I do not see how that is relevant to clause 2 as that problem, dilemma and difference of judgment would have occurred whatever might have been the law relating to unauthorised disclosure.

Dr. Owen

The point is that clause 2(2)(a) uses the words: prejudices the capability of, or of any part of, the armed forces". So of course different judgments could be formed. But if the subsection used instead the words "seriously damages", that will not be so. Throughout his speech today, the Home Secretary has constantly invoked, as he has in speeches throughout the country and in press releases, the phrase "serious harm". Is he suggesting to the Committee that his new wording, damages the capability of, or any part of, the armed forces", is the same as "serious injury"? Is the right hon. Gentleman justifying that argument under the overall rubric, which he says he supports but refuses to write into the Bill, of serious injury?

Mr. Hurd

The right hon. Gentleman buttressed his case with a long and fascinating anecdote about Chevaline, but that concerned whether or not authorised information should have been authorised and has nothing to do with the Bill, which concerns unauthorised information, so the right hon. Gentleman's argument is irrelevant.

Running through these and many other amendments is an unbalanced approach to the Bill. It is dominated to the exclusion of other particulars by one particular type of case and one particular type of individual—the aggrieved or anxious public servant who wishes to disclose malpractice. We have heard about him time and again, day after day and hour after hour. Such individuals do exist from time to time, and may exist in the future. That is why we need safeguards, channels of complaint and staff counsellors—and they are being provided. But there has not been a word of acceptance, except from the right hon. Member for Morley and Leeds, South and, most recently, from my hon. Friend the Member for Aldridge-Brownhills of the damage that disclosure can do against protection of the citizen.

Mr. Richard Shepherd

I shall be worried if my right hon. Friend sits down without explaining why it is that he has used all around the country, and in this House, the words "serious damage"—serious, serious, serious, yet in his response to the debate, he has not addressed himself to the question why the word "serious" cannot be used in the Bill.

Mr. Hurd

I spent the first five minutes of my response doing so. I shall not repeat that explanation, because I do not wish to hog the last few minutes of the debate. However, If my hon. Friend reads the first five minutes of my reply, he will find a careful analysis of why we did not follow up the road after Franks with the definition of serious damage.

Mr. Shepherd

But you said that you did follow Franks.

Mr. Hurd

No, we have never said that we followed Franks. We said that we asked Parliament—not the Government—to select areas where disclosure would be serious. We asked Parliament to define them and to include them in the Bill, so that a jury could decide on individual cases. That is the whole basis of our approach. The amendments deal with damaging the capability of those on whom the defence of the country rests. It is not a minor matter. A person disclosing such information can never be certain how much damage he will do. In our view—here we are talking about defence—it is enough that a disclosure made by a person knowingly seeking to damage the capability of the armed forces should attract, in this instance, the sanction of the criminal law. The right hon. Member for Sparkbrook was right to say that lives depend on the legislation—and lives should not be jeopardised by a loose definition.

Mr. Hattersley

I have four minutes in which to deal with the Home Secretary's attempts to answer the debate—to describe his speech in the most charitable light.

I emphasise again that, since Franks, there has been a major change in the way in which the law is to be implemented. We know that the certificate has gone, but that is not the issue for debate. The issue is that, according to clause 2, the Government can prosecute, with reasonable certainty of success, anyone who reveals information about defence matters that cause harm, as defined in the clause. The clause defines harm as anything that deflects the armed forces from carrying out whatever task they choose to carry out. The Home Secretary may argue that trivial matters deflecting the armed forces from carrying out their tasks will not be the subject of prosecution, but that is not an adequate reply to a debate in Parliament, when parliamentarians naturally want protection against such prosecutions written into the Bill.

If the right hon. Gentleman believes that the Ministry of Defence will not prosecute when others believe that prosecution would be appropriate, he misunderstands the mentality of the Ministry of Defence over the years. The hon. Member for Thanet, South (Mr. Aitken) was over-generous in accepting the point made by the hon. Member for Banbury (Mr. Baldry) that in the case of the quotation for fly buttons no prosecution would be possible because such a disclosure could not be said to harm the armed forces. I know from my years in the Ministry of Defence that somebody might say that the revelation itself undermined the morale of the armed forces, and that it left the armed forces open to ridicule. The reasons for prosecution will always be found if prosecution is possible. What the Home Secretary does not seem to understand is that we are not satisfied with assurances that it will not happen: we want the Bill to be specific in preventing trivial and unreasonable prosecutions.

The Home Secretary says that he cannot include the word "serious". He does not like the concept or the definition. But the Bill is littered with examples of the word "serious" when it is convenient for the Government's purposes.

We are left with a final point which must, I think, be the last word before the untimely conclusion of our debate. The Government have persistently toured the country and said publicly—and the Home Secretary has slipped into the habit of implying it from time to time in debates in the House—that there is a serious test of harm: that the national interest is the criterion against which prosecutions are measured. That is not the case, and the right hon. Gentleman does himself and his cause no good by pretending one thing outside the Chamber and another inside it.

More important, because of the sloppy wording of the Bill, some prosecutions will be mounted and will hold the Government up to ridicule. Some of us will not lose many hours' sleep over that, but it is just possible that some who by normal standards are adjudged innocent will be convicted and sent to prison because of sloppy wording. It is no wonder that not one Member on either side of the Committee has spoken in favour of what the Home Secretary now proposes, and it is no wonder that there will be a substantial vote for the amendment. I am sure that the Home Secretary will get his own way thanks to his supine Back Benchers, but the House of Lords—if it understands its function—will want to lessen the damage that he is doing.

Mr. Baldry

On a point of order, Sir Paul. The right hon. Gentleman has just—

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

Order. I am now required to put the Question.

It being Nine o'clock, THE CHAIRMAN proceeded, pursuant to the order [13 February] and the resolution this day, to put the Question already proposed from the Chair.

Question put, That the amendment be made:—

The Committee divided: Ayes 183, Noes 286.

DivisionNo.96] [9.00 pm
Abbott, Ms Diane Clarke, Tom (Monklands W)
Aitken, Jonathan Clay, Bob
Allen, Graham Clelland, David
Anderson, Donald Clwyd, Mrs Ann
Armstrong, Hilary Cohen, Harry
Ashdown, Rt Hon Paddy Coleman, Donald
Ashley, Rt Hon Jack Corbett, Robin
Ashton, Joe Cousins, Jim
Banks, Tony (Newham NW) Crowther, Stan
Barnes, Harry (Derbyshire NE) Cryer, Bob
Barron, Kevin Cummings, John
Battle, John Cunliffe, Lawrence
Beckett, Margaret Cunningham, Dr John
Beith, A. J. Darling, Alistair
Bell, Stuart Davies, Rt Hon Denzil (Llanelli)
Benn, Rt Hon Tony Davis, Terry (B'ham Hodge H'l)
Bermingham, Gerald Dewar, Donald
Blair, Tony Dixon, Don
Boateng, Paul Dobson, Frank
Brown, Ron (Edinburgh Leith) Dunnachie, Jimmy
Bruce, Malcolm (Gordon) Dunwoody, Hon Mrs Gwyneth
Buchan, Norman Dykes, Hugh
Buckley, George J. Eadie, Alexander
Caborn, Richard Eastham, Ken
Campbell, Menzies (Fife NE) Evans, John (St Helens N)
Campbell, Ron (Blyth Valley) Ewing, Harry (Falkirk E)
Campbell-Savours, D. N. Ewing, Mrs Margaret (Moray)
Canavan, Dennis Field, Frank (Birkenhead)
Carlile, Alex (Mont'g) Fields, Terry (L'pool B G'n)
Cartwright, John Fisher, Mark
Flannery, Martin Martlew, Eric
Flynn, Paul Maxton, John
Foot, Rt Hon Michael Meacher, Michael
Foster, Derek Meale, Alan
Foulkes, George Michael, Alun
Fraser, John Michie, Bill (Sheffield Heeley)
Fyfe, Maria Mitchell, Austin (G't Grimsby)
Galbraith, Sam Moonie, Dr Lewis
Galloway, George Morgan, Rhodri
Garrett, John (Norwich South) Mullin, Chris
George, Bruce Nellist, Dave
Gilbert, Rt Hon Dr John O'Neill, Martin
Gilmour, Rt Hon Sir Ian Orme, Rt Hon Stanley
Godman, Dr Norman A. Owen, Rt Hon Dr David
Golding, Mrs Llin Parry, Robert
Gordon, Mildred Patchett, Terry
Gorst, John Pike, Peter L.
Gould, Bryan Powell, Ray (Ogmore)
Graham, Thomas Prescott, John
Grant, Bernie (Tottenham) Primarolo, Dawn
Harman, Ms Harriet Randall, Stuart
Hattersley, Rt Hon Roy Rees, Rt Hon Merlyn
Haynes, Frank Reid, Dr John
Healey, Rt Hon Denis Richardson, Jo
Heffer, Eric S. Roberts, Allan (Bootle)
Hinchliffe, David Robertson, George
Hogg, N. (C'nauld & Kilsyth) Robinson, Geoffrey
Hood, Jimmy Rooker, Jeff
Howell, Rt Hon D. (S'heath) Ruddock, Joan
Howells, Geraint Salmond, Alex
Hoyle, Doug Sedgemore, Brian
Hughes, John (Coventry NE) Sheerman, Barry
Hughes, Robert (Aberdeen N) Sheldon, Rt Hon Robert
Hughes, Sean (Knowsley S) Shepherd, Richard (Aldridge)
Ingram, Adam Shore, Rt Hon Peter
Janner, Greville Short, Clare
Jones, Martyn (Clwyd S W) Sillars, Jim
Kaufman, Rt Hon Gerald Skinner, Dennis
Kennedy, Charles Smith, Andrew (Oxford E)
Kinnock, Rt Hon Neil Smith, Rt Hon J. (Monk'ds E)
Lamond, James Snape, Peter
Leadbitter, Ted Soley, Clive
Leighton, Ron Spearing, Nigel
Lestor, Joan (Eccles) Steel, Rt Hon David
Lewis, Terry Strang, Gavin
Litherland, Robert Straw, Jack
Livsey, Richard Taylor, Mrs Ann (Dewsbury)
Loyden, Eddie Taylor, Matthew (Truro)
McAllion, John Vaz, Keith
McAvoy, Thomas Wall, Pat
McCartney, Ian Wareing, Robert N.
McFall, John Welsh, Andrew (Angus E)
McKay, Allen (Barnstey West) Welsh, Michael (Doncaster N)
McKelvey, William Williams, Rt Hon Alan
McLeish, Henry Wilson, Brian
Maclennan, Robert Winnick, David
McNamara, Kevin Wise, Mrs Audrey
McTaggart, Bob Worthington, Tony
McWilliam, John Wray, Jimmy
Madden, Max
Mahon, Mrs Alice Tellers for the Ayes:
Marek, Dr John Mr. Frank Cook and
Marshall, David (Shettleston) Mr. Nigel Griffiths.
Marshall, Jim (Leicester S)
Adley, Robert Banks, Robert (Harrogate)
Alexander, Richard Batiste, Spencer
Alison, Rt Hon Michael Beaumont-Dark, Anthony
Amess, David Bellingham, Henry
Amos, Alan Bendall, Vivian
Arbuthnot, James Bennett, Nicholas (Pembroke)
Arnold, Jacques (Gravesham) Benyon, W.
Arnold, Tom (Hazel Grove) Bevan, David Gilroy
Aspinwall, Jack Bitten, Rt Hon John
Atkins, Robert Blackburn, Dr John G.
Atkinson, David Blaker, Rt Hon Sir Peter
Baker, Rt Hon K. (Mole Valley) Bonsor, Sir Nicholas
Baker, Nicholas (Dorset N) Boscawen, Hon Robert
Baldry, Tony Bottomley, Peter
Bowden, A (Brighton K'pto'n) Hargreaves, A. (B'ham H'll Gr')
Bowden, Gerald (Dulwich) Hargreaves, Ken (Hyndburn)
Bowis, John Hayes, Jerry
Boyson, Rt Hon Dr Sir Rhodes Hayward, Robert
Braine, Rt Hon Sir Bernard Heathcoat-Amory, David
Brandon-Bravo, Martin Heddle, John
Brazier, Julian Hicks, Robert (Cornwall SE)
Bright, Graham Higgins, Rt Hon Terence L.
Brown, Michael (Brigg & CITs) Hind, Kenneth
Bruce, Ian (Dorset South) Hogg, Hon Douglas (Gr'th'm)
Buck, Sir Antony Holt, Richard
Burns, Simon Hordern, Sir Peter
Burt, Alistair Howard, Michael
Butcher, John Howarth, Alan (Strat'd-on-A)
Butler, Chris Howarth, G. (Cannock & B'wd)
Butterfill, John Howell, Rt Hon David (G'dford)
Carlisle, John, (Luton N) Howell, Ralph (North Norfolk)
Carlisle, Kenneth (Lincoln) Hughes, Robert G. (Harrow W)
Carrington, Matthew Hunt, David (Wirral W)
Carttiss, Michael Hunt, John (Ravensbourne)
Cash, William Hunter, Andrew
Chalker, Rt Hon Mrs Lynda Hurd, Rt Hon Douglas
Chapman, Sydney Irvine, Michael
Churchill, Mr Irving, Charles
Clark, Hon Alan (Plym'ttr S'n) Jack, Michael
Clark, Sir W. (Croydon S) Jackson, Robert
Colvin, Michael Janman, Tim
Conway, Derek Jessel, Toby
Coombs, Anthony (Wyre F'rest) Jones, Robert B (Herts W)
Coombs, Simon (Swindon) Kellett-Bowman, Dame Elaine
Cope, Rt Hon John Key, Robert
Couchman, James Kilfedder, James
Cran, James King, Roger (B'ham N'thfield)
Currie, Mrs Edwina Kirkhope, Timothy
Davies, Q. (Stamf'd & Spald'g) Knapman, Roger
Davis, David (Boothferry) Knight, Greg (Derby North)
Day, Stephen Knight, Dame Jill (Edgbaston)
Devlin, Tim Knox, David
Dickens, Geoffrey Lamont, Rt Hon Norman
Dicks, Terry Lang, Ian
Douglas-Hamilton, Lord James Latham, Michael
Dunn, Bob Lawrence, Ivan
Evans, David (Welwyn Hatf'd) Lawson, Rt Hon Nigel
Evennett, David Lee, John (Pendle)
Fairbairn, Sir Nicholas Leigh, Edward (Gainsbor'gh)
Fallon, Michael Lennox-Boyd, Hon Mark
Favell, Tony Lester, Jim (Broxtowe)
Fenner, Dame Peggy Lilley, Peter
Field, Barry (Isle of Wight) Lloyd, Sir Ian (Havant)
Finsberg, Sir Geoffrey Lloyd, Peter (Fareham)
Fishburn, John Dudley Lord, Michael
Fookes, Dame Janet McCrindle, Robert
Forman, Nigel Macfarlane, Sir Neil
Forsyth, Michael (Stirling) MacGregor, Rt Hon John
Forth, Eric MacKay, Andrew (E Berkshire)
Fox, Sir Marcus Maclean, David
Franks, Cecil McLoughlin, Patrick
Freeman, Roger McNair-Wilson, Sir Michael
French, Douglas McNair-Wilson, P. (New Forest)
Gale, Roger Madel, David
Garel-Jones, Tristan Major, Rt Hon John
Glyn, Dr Alan Malins, Humfrey
Goodhart, Sir Philip Maples, John
Goodlad, Alastair Marland, Paul
Goodson-Wickes, Dr Charles Marshall, Michael (Arundel)
Gorman, Mrs Teresa Martin, David (Portsmouth S)
Gow, Ian Mates, Michael
Gower, Sir Raymond Mawhinney, Dr Brian
Grant, Sir Anthony (CambsSW) Maxwell-Hyslop, Robin
Greenway, Harry (Eallng N) Mayhew, Rt Hon Sir Patrick
Greenway, John (Ryedale) Meyer, Sir Anthony
Gregory, Conal Miller, Sir Hal
Griffiths, Sir Eldon (Bury St E') Miscampbell, Norman
Griffiths, Peter (Portsmouth N) Mitchell, Andrew (Gedling)
Ground, Patrick Mitchell, Sir David
Grylls, Michael Molyneaux, Rt Hon James
Hamilton, Hon Archie (Epsom) Monro, Sir Hector
Hamilton, Neil (Tatton) Morrison, Sir Charles
Hanley, Jeremy Moss, Malcolm
Hannam, John Moynihan, Hon Colin
Mudd, David Stanbrook, Ivor
Neale, Gerrard Stanley, Rt Hon Sir John
Nelson, Anthony Steen, Anthony
Nicholls, Patrick Stern, Michael
Nicholson, David (Taunton) Stevens, Lewis
Nicholson, Emma (Devon West) Stewart, Allan (Eastwood)
Norris, Steve Stokes, Sir John
Onslow, Rt Hon Cranley Stradling Thomas, Sir John
Oppenheim, Phillip Sumberg, David
Page, Richard Summerson, Hugo
Paice, James Taylor, Ian (Esher)
Patnick, Irvine Taylor, John M (Solihull)
Patten, John (Oxford W) Taylor, Teddy (S'end E)
Pattie, Rt Hon Sir Geoffrey Tebbit, Rt Hon Norman
Pawsey, James Temple-Morris, Peter
Peacock, Mrs Elizabeth Thompson, D. (Calder Valley)
Porter, Barry (Wirral S) Thompson, Patrick (Norwich N)
Porter, David (Waveney) Thorne, Neil
Portillo, Michael Thornton, Malcolm
Powell, William (Corby) Thurnham, Peter
Price, Sir David Townend, John (Bridlington)
Raffan, Keith Tredinnick, David
Raison, Rt Hon Timothy Trotter, Neville
Rathbone, Tim Vaughan, Sir Gerard
Redwood, John Viggers, Peter
Renton, Tim Waddington, Rt Hon David
Rhodes James, Robert Wakeham, Rt Hon John
Riddick, Graham Walden, George
Ridsdale, Sir Julian Walker, Bill (T'side North)
Roberts, Wyn (Conwy) Waller, Gary
Rossi, Sir Hugh Wardle, Charles (Bexhill)
Rost, Peter Watts, John
Rowe, Andrew Wells, Bowen
Rumbold, Mrs Angela Wheeler, John
Sackville, Hon Tom Whitney, Ray
Sainsbury, Hon Tim Widdecombe, Ann
Sayeed, Jonathan Wiggin, Jerry
Scott, Nicholas Wilkinson, John
Shaw, David (Dover) Wilshire, David
Shaw, Sir Giles (Pudsey) Winterton, Mrs Ann
Shaw, Sir Michael (Scarb') Winterton, Nicholas
Shelton, Sir William Wolfson, Mark
Shephard, Mrs G. (Norfolk SW) Wood, Timothy
Shersby, Michael Woodcock, Mike
Skeet, Sir Trevor Yeo, Tim
Smith, Tim (Beaconsfield) Young, Sir George (Acton)
Soames, Hon Nicholas Younger, Rt Hon George
Speller, Tony
Spicer, Sir Jim (Dorset W) Tellers for the Noes:
Spicer, Michael (S Worcs) Mr. Tony Durant and
Squire, Robin Mr. David Lightbown.

Question accordingly negatived.

The Chairman then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at Nine o'clock.

Amendment made: No. 86, in page 2, line 36, leave out 'prejudices' and insert 'damages'.—[Mr. John Patten.]

Clause 2, as amended, ordered to stand part of the Bill.

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