HC Deb 16 February 1989 vol 147 cc505-43
Mr. Robert Maclennan (Caithness and Sutherland)

I beg to move amendment No. 74, in page 7, line 17, at end insert

'or (c) to a Member of Parliament.'.

Mr. Maclennan

Clause 7 deals with authorised disclosures of official information. The purpose of my amendment is to enable an officer to whom a disclosure of information has been made to pass that information to a Member of Parliament in certain restricted circumstances. Under clause 7(3), a member of the public who obtains protected information commits an offence by disclosing it to anyone else, unless the disclosure is to a civil servant or has been authorised. My amendment would allow a member of the public to disclose such information to an hon. Member.

It is important that the House recognises that the amendment does not apply to disclosures by civil servants, but only to disclosures by other persons—members or the public. Therefore, it does not provide a direct channel for a civil servant who wishes to leak information to a Member of Parliament and it does not deal with the Ponting point. A disclosure by a civil servant, whether to a journalist or a Member of Parliament, would not be protected by the amendment.

It follows that the amendment does nothing to make leaks more likely. The person at the beginning of the chain would commit an offence. However, it would protect a member of the public into whose hands a leaked document came and whose only disclosure of protected information was to a Member of Parliament.

If one has to decide who is an appropriate person to whom protected information should be disclosed, there is no one more accessible or more suitable than a Member of Parliament.

4.30 pm
Mr. John Gorst (Hendon, North)

Will the hon. Gentleman clarify whether he intends to bracket a Member of Parliament with a Member of the European Parliament as being synonymous?

Mr. Maclennan

I did not do so in the amendment, but, in the light of the decisions that the House took last night about leaked information from the European Parliament, it would be reasonable for us to address the question whether there might be a case for extending the cover. However, I did not make that proposal in the amendment.

It is widely recognised that Members of Parliament are accessible to their constituents in a manner that makes them the natural people to turn to if information of a protected kind should come into the possession of a member of the public. Members of the House of Commons are honourable and are to be entrusted with the task of dealing appropriately with information that they are handed by their constituents or any other member of the public. If a member of the public received such protected information, he would be at a loss to know to whom to turn if he could not turn to his Member of Parliament. Therefore, I commend the amendment to the Committee.

Mr. Aitken

I have some sympathy for the amendment which I understand would give some protection to a Member of Parliament who was simply carrying out the perfectly fair and honourable role of being as little as a mere conduit pipe between a Crown servant and perhaps the Government of the day.

I can well envisage circumstances in which a member of the security services, or someone who had been notified under the Act, might seek advice from his Member of Parliament on what he should do in the light of his anxiety about something that had gone wrong inside the security services or the defence establishment, on which, for one reason or another, he had not had adequate redress or a fair hearing through the normal channels of communication.

A Member of Parliament is quite used to such an approach at a constituency surgery or in correspondence. Such approaches are received several times during one's career as a Member of Parliament, if not always from officials who would be designated under the Act. There should be some protection in the Act of a complainant's civil rights, and, indeed, those of a Member of Parliament.

In case anyone thinks that that is all fanciful stuff, let me take the House back to an episode that has been well reported by Mr. Chapman Pincher and others, in which I played a modest conduit pipe role, in the months following the disclosures in 1979, when my right hon. Friend the Prime Minister came to the Dispatch Box having decided, as a result of a written question from the hon. Member for Hartlepool (Mr. Leadbitter), to reveal that Mr. Blunt had been a traitor and had been granted immunity.

Up to that moment, inside the security services there had been much tighter secrecy and general acceptance that the vow of omerta, or absolute secrecy, should prevail under all circumstances, than appears to be the case today. There is no doubt that, when some Crown servants read my right hon. Friend's disclosure—a right and proper disclosure in the national interest—they felt that the statement was not as full as it should have been in the light of extra information that they had. Therefore, they wondered what to do in order to reveal certain additional information.

For various reasons linked with a mutual friend, one such Crown servant approached me. I am saying nothing new, simply telling a story, perhaps rather more accurately than Mr. Chapman Pincher has already told it. That former Crown servant was a man whom I knew only as a member of the Clerks Department in the House, a Mr. Arthur Martin, who had previously been a Crown servant in the Security Service. He felt strongly that the Prime Minister's statement had left unmentioned some vital matters and he feared that she might not even be aware of that herself. His fundamental fear was that the Prime Minister had gone in to bat on that major issue of Blunt without being fully briefed on the alleged treachery of Sir Roger Hollis. I know that hon. Members hold many views on that. The right hon. Member for Blaenau Gwent (Mr. Foot) feels that those fears were completely groundless and that Sir Roger Hollis's reputation has been unjustifiably besmirched.

But be that as it may, let any hon. Member put himself in the position in which I found myself, of being told out of the blue the amazing story that a former head of our security services had been a Soviet agent and that a formidable body of opinion inside the security services not only believed that and had a committee set up which reported that they believed it, but also had set up an extra inquiry under Sir Burke Trend. All those matters had gone on inside the barrier of secrecy but, allegedly, might not have been fully known to the Prime Minister of the day.

What should any Member of Parliament do in those circumstances? Exactly, I suggest, what I did after consulting a couple of close friends who were Privy Councillors. I wrote the whole story down in a letter and sent it to the Prime Minister, after which, for some months, there was complete secrecy and silence, and then in due course, the Prime Minister responded in confidence.

My point is that any Back Bencher could suddenly have been given a disclosure such as that which seemed to me at that time to be of earth-shaking proportions. I am sure that any Back Bencher, whatever his party loyalties, would have taken more or less the same course that I took—to act as a mere conduit pipe and pass it on to the responsible Minister, in this case the Prime Minister. Against the background of that anecdote—which I assure the House is entirely accurate—I submit that there could easily be similar instances in the future.

Mr. Nicholas Budgen (Wolverhampton, South-West)

If we are to be used as conduit pipes, and, for the sake of argument, it becomes a criminal offence to receive that information, how in practical terms can a Member of Parliament stop himself receiving it? If someone sits in one's surgery and says something or sends one a letter, how can one stop oneself receiving that information?

Mr. Aitken

I am glad to see that for the first time during these debates my right hon. and learned Friend the Attorney-General is present, because he will be aware that a "conduit pipe" is an expression in law. It is not a piece of plumbing or drainage, but is, in fact, a legal term meaning a quite innocent party who does no more than transmit the information onward. Certainly, if a Member of Parliament were to be more than a conduit pipe—for example, if he spoke on the radio, put down parliamentary questions, or made a song and dance about it—I can see that he could exceed what might be called his normal lawful responsibilities.

Mr. Gorst

Probably for the purposes of clarity, my hon. Friend is slightly oversimplifying the situation. His premise is that the communication that he or any other Member of Parliament receives will be from a named person. However, as any Member of Parliament who has been here for a short time will know, one often receives anonymous communications. If we receive anonymous communications, that poses a new set of problems. If the amendment is not accepted, people will be more inclined to send anonymous communications than named ones. Will my hon. Friend deal with that aspect of the problem too?

Mr. Aitken

It would certainly make the role of a Member of Parliament even more innocent if he were to act simply as a post office for anonymous communications. I believe, however, that, if the material were entirely anonymous, most of us would not communicate it to Ministers of the Crown, but would throw it straight into the wastepaper basket.

There are clearly variations on the theme. Even if a repeat performance of a former head of the anti-Soviet division and the Security Service telling a Back Bencher that the head of the Security Service is a Soviet agent is unlikely, it is nevertheless likely that some Crown servant may approach his Member of Parliament and tell him a story that the Member feels he must pass on. What will be the position of the Member if he passes on that information? As I understand it, under the Bill he could quite easily—depending on the goodwill of the prosecutor or the Attorney-General—be heading for Wormwood Scrubs.

Mr. David Winnick (Walsall, North)

In the case of Sir Roger Hollis, if some members of the Security Service felt that there were serious allegations that could not be dealt with in a manner that was considered satisfactory, would it not have been better for a Member of Parliament to intervene, because either way that might have cleared up the matter? Sir Roger Hollis's name might have then been cleared. However, now, whether he was guilty or not, there will always be a question mark about his integrity. If he was innocent—as one hopes he was—the matter would have been resolved at the time. Perhaps if a Member of Parliament had had that information in his hands and had pursued it, the outcome would have been much better.

Mr. Aitken

How the members of the Fluency committee of the security services and the group of Security Service officials known rather inappropriately—in view of their snow-white hair and elderly demeanour—as the young Turks tried to transmit their fears to higher authority is a long and tortuous saga. It had many amusing byways, including one member insisting on ringing the doorbell of No. 10 Downing street and not leaving the front hall until he was shown to the office of the Cabinet Secretary. They did try to transmit their fears about major penetration of the security services.

I am focusing on the narrow point of the role of a Member of Parliament. A Member doing all the right things, operating entirely correctly and honourably and in accordance with what all sensible right hon. and hon. Members would feel right and proper, would have no protection under the Bill. The only protection that I can envisage is his reliance on the Attorney-General's discretion not to prosecute him. I have considerable faith in the Attorney-General's discretion, certainly when the Attorney-General is as reasonable and as eminent a figure as my right hon. and learned Friend.

4.45 pm

I now come specifically to amendment No. 74. Do we need in statute any better protection for Members of Parliament? We do not seek any special privileges, but we must recognise that in our role as constituency Members, holding surgeries, receiving correspondence and listening to the grievances of our constituents, we might face such a situation as I faced in early 1980.

I believe, therefore, that there is merit in the amendment of the hon. Member for Caithness and Sutherland (Mr. Maclennan). My right hon. Friend the Member for Brighton, Pavilion (Mr. Amery)—who unfortunately is unable to be here because he has 'flu—also feels that some special legal status should be written into the Bill. There is a case for doing something along the lines of the amendment, and I therefore cautiously support it.

Mr. Foot

I am glad to follow the hon. Member for Thanet, South (Mr. Aitken) in the case which he was putting. I hope that the Government will give serious attention to the amendment or to one that could achieve the same absolutely clear effect. This is one of the most important aspects of the Bill that we still have to debate. I am not saying, however, that some of the proposed amendments do not also provide ways in which we can proceed, and 1 have no doubt that my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) will be putting our case. After all the discussion, we must get the matter cleared up before we leave this part of the Bill.

When I saw that the Leader of the House was present, I thought that he would intervene on the House of Commons aspect. I am very glad to welcome both him and the Attorney-General to our debate. It appears that our appeals for his attendance have carried great weight in the Government, and for the first time we have the Attorney-General present. Now that he has come, I hope that he will not be gagged. I hope that he will have every opportunity of putting forward his case on this matter, which is one which has been brought to the attention of previous Attorneys-General. I am sure that the right hon. and learned Gentleman would have not come to the House without all the detail at his very skilled fingertips. We shall have the advantage of his views later.

I still have hopes that the Leader of the House may participate in the debate. I am not saying this in denigration of the Home Secretary, who is capable of dealing with some parts of the Bill, but perhaps the Leader of the House and the Attorney-General are better qualified to deal with this part.

Of course, the case in which the hon. Member for Thanet, South and others were involved has been recalled previously in our debates and in our approach to the idea of having a new Official Secrets Act. One of the memories of the House of Commons on this sort of point is that of the Sandys case. I shall not recite it all, but I believe that hon. Members have not understood exactly the conclusion of that case. That makes it all the more important that, when we get a Bill that carries out what the House presumably wants to be the law to govern these matters for the next 20 or 30 years—as long perhaps as the 1911 Act was the law, but let us do better than that—we are sure of the rights of the House of Commons and of Members of Parliament.

We must be sure about the rights of hon. Members. Although the Sandys case happened under a Conservative Government which had a very powerful majority, we must ensure that there is no recurrence of the interference in the rights of hon. Members which was tolerated by the Conservative Government in 1938 and in 1939. When I say that, I am speaking not only on behalf of the Labour and Liberal Members who protested so strongly then, but: on behalf of the very small minority of brave Conservative Members who were determined to stand by Winston Churchill as he was conducting one of the most difficult fights of his career. He had fewer followers than the hon. Member for Thanet, South, who has been tabling amendments to this Bill. Hon. Members can guess, therefore, how difficult it must have been to put the case.

The Conservative Government in 1938 had a Chief Whip who believed that all the matters should be pushed through. The present Leader of the House is very different, although sometimes I think that he has adopted Captain Margesson as his model and wants to live up to the way in which Captain Margesson forced through some of the worst measures that have ever passed through the House of Commons at some of our most dangerous moments.

The crisis of the Duncan Sandys case was never concluded. No decision was taken after a Member of Parliament had been arraigned by a Minister because he tried to bring to the attention of the Minister's Department some of the deficiencies in the plans for the defence of London. Those were very important matters, but the Government of the day tried to interfere with a Member of Parliament carrying out his duties. The Government acted against the person who went to Mr. Duncan Sandys and provided him with the information.

The Duncan Sandys case occurred at a critical moment in the history of this country. Having lived through that experience, the House should have said, "Well, let's clear up the matter. Let's make sure we never have a Government who exercise ministerial power in the way in which that Government acted through Mr. Hore-Belisha." He thought, and no doubt was advised by the Law Officer of the day, that he was making perfectly proper use of his powers under the Official Secrets Act.

Churchill did not bring the matter to the House, because he thought that the Margesson-Neville Chamberlain majority would be used against him to crush his case. He had no confidence that if he brought the case to the House, he would receive any sympathy even though such great issues for the future and safety of the country were involved. Therefore, the matter was left.

No decision had been taken by the House of Commons by the time the second world war broke out. No decision had been taken to condemn the actions of Hore-Belisha and the others. There was some slight protection in the sense that parts of the matter were referred to the Committee of Privileges. To some extent, the Committee upheld Duncan Sandys and his supporters. That was not an absolute protection and even the Committee of Privileges, as far as I understand the full details of the case, did not report to the House so that the House could make a final decision. The matter was left in the air, and that happened in a very important case involving such an eminent Member of this House as Churchill who had shown that he was much more aware of the safety of the nation and the country's public interest than the Government were. Even in those circumstances, the matter was not brought to a proper conclusion.

The nearest that the matter came to a conclusion was when Churchill—for reasons that I have explained, he did not come to the House, because he did not think that he would receive fair treatment here at the time—wrote to the Evening Standard anonymously, which was a most curious development, and explained how the Official Secrets Act should be applied in future after the experience of the case. He said that it should be applied to spies and people who attack the safety of the nation, but that there must be an obsolute exclusion from the operation of the Official Secrets Act for journalists and others obtaining information of that kind and, of course, for Members of Parliament.

I have no doubt that if Churchill had had his way and had been able to reform the Official Secrets Act in 1939 or 1940, he would have insisted on a clause to prevent the kind of treatment that he and Duncan Sandys received at the hands of the Conservative Government. Part of that protection would have applied to a Member of Parliament and his rights if he was approached with information. I do not want to give the present Government any easy get-out. An alteration to the clause or to the part of the Bill in which these matters are laid down may be necessary. In some way it should be stated that it will be impossible for the circumstances of 1938 and 1939 to recur.

When we raised these issues a few weeks ago, the Minister of State replied to the debate as if the matter was dealt with and there was no need to worry. That is not right. Now that we are clarifying the Official Secrets Act—leaving aside our arguments about whether some parts make defence more difficult for people who want to protect themselves—we must ensure that the approach to a Member of Parliament is covered. It will not be covered simply by leaving matters as they are. It will not be covered unless there is something specific in the Bill. It will not be covered simply by giving general assurances.

If the Home Secretary says that these matters could go to the Committee of Privileges, that will not do. Some matters could be dealt with by a reference to the Committee of Privileges and part of the Sandys case was referred to such a Committee, but that was not the solution.

The Home Secretary should include a reference in the Bill to how an approach to a Member of Parliament is protected. The rights of hon. Members must be explained. We must ensure that, as the law is being changed, the folly, monstrosity or crime—whatever we want to call it—that occurred in the few years before 1940 will never happen again. Now that the Home Secretary has legal assistance, I hope that he will give us that guarantee.

Mr. Kenneth Hind (Lancashire, West)

While I appreciate that it is a matter of grave concern that people who are notified or public servants who are party to confidential information should be able to talk to Members of Parliament, the major concern must be what hon. Members do with that information.

Under amendment No. 74 there is the right for a civil servant to disclose information to a Member of Parliament. If I read the amendment correctly, the hon. Member for Caithness and Sutherland (Mr. Maclennan) is suggesting that what the Member of Parliament does with the information, irrespective of the damage or harm that it may do, is totally in his hands. The Member of Parliament is in no way responsible for looking after the national interest or for avoiding damage to the nation's interest.

I hope that when he responds to the debate, the hon. Gentleman will say that that is incorrect. I suggest that he looks carefully at the earlier clauses in the Bill, particularly clause 5. There is nothing within those earlier clauses to prevent either a civil servant or an official of the secret service who is notified from passing information to a Member of Parliament, provided that the Member uses the information responsibly and not in such a way as to cause harm to the national interest. Such a person is already covered by the Bill.

If information is disclosed to us, as Members of Parliament, and we use it responsibly—there are a number of ways in which we could use it that would pass the harm test—we will be covered by the Bill and the amendment will be unnecessary.

Mr. Budgen

What would be considered responsible?

5 pm

Mr. Hind

It is open to all of us in receipt of such information to pursue the matter through the channels open to us.

Mr. Eric S. Heffer (Liverpool, Walton)

The hon. Gentleman is advancing an amazing argument. Did he not see or read about what happened in the United States over the Watergate scandal? Does he actually think that President Nixon and the United States Government thought that what they were doing was in the public interest, and was not damaging to it? Does he not understand that, if disclosures had not been made, the Watergate scandal would never have come out and people would never have known about it. Without disclosure such matters remain hidden. Does the hon. Gentleman live in the real world?

Mr. Hind

The hon. Gentleman has a point, but he must bear in mind the fact that the Bill covers not only that type of information—which obviously points to the misdoings of the Executive, and should be exposed—but sensitive information that could cause much damage to the nation if exposed. That is why the harm test exists.

I say that Members of Parliament should use such information responsibly because it is up to them to decide to which category the information relates. There is obviously the sort of information that was mentioned in an earlier debate—the information passed by Captain Scott to one of his relatives during the last war about the state of our tanks in the western desert and our inability to defend them against German guns. Such information could have been passed to a Member of Parliament who could have used it responsibly through the channels open to him—the Ministry of Defence, the Foreign Office or the appropriate Minister—saying that information had come to his notice and something should be done about it. No harm would then have been done to the national interest, and the Germans would not have been aware that we were considering the circumstances and taking the appropriate measures to deal with them.

Mr. Maclennan

If the hon. Gentleman looks at clause 7(3), he will see that the member of the public into whose hands the official information comes has no proper channel of communication other than through a Crown servant. How many of the hon. Gentleman's constituents know Crown servants to whom it is appropriate that they should convey prohibited information in accordance with an official authorisation"? What would that mean to the hon. Gentleman's constituents who might come into possession of extremely sensitive information? What would be the proper channel for them to use? The clause seems to make it impossible to communicate such information without committing an offence.

Mr. Hind

The hon. Gentleman ignores the fact that the harm test covers the matter. Surely there is no reason why a person who came into possession of such information should not approach his Member of Parliament, tell him of the circumstances and say, "I wish you to treat this information appropriately, with all possible responsibility and in confidence." Provided that no harm stemmed from the disclosure of the information, no offence would be committed.

There is no reason, even within the present framework of the Bill, why that could not be done. The basis of the offence—which is relevant—is the damage that is done to the national interest. These debates have constantly ignored that point.

Mr. Maclennan

The hon. Gentleman's point about the harm test is a red herring in this context. How is a lay member of the public into whose hands the protected information falls to determine whether its disclosure will cause harm? The existence of a harm test will not offer him any practical assistance in determining what to do with the information. If it is sensitive information, he must decide whether to put it in the fire or whether it warrants official action. The only choice open to him under clause 7(3) is to pass the information to a Crown servant, but in my view it would be more appropriate for him to submit it to his Member of Parliament.

Mr. Hind

Crown servants are bound by the code contained in the Bill, and they include police officers. Why could not the person to whom the hon. Gentleman referred approach a police officer with the information? Will the hon. Gentleman show me where in the Bill there is any requirement for a Member of Parliament to be bound by the same code of practice as a Crown servant to act in the same responsible way? It does not exist.

There is nothing in the Bill to stop Members of Parliament using the information in whatever way they wish. Their actions are not controlled in any way, and that creates a charter for irresponsibility for people who wish to abuse the national interest for political reasons.

Clause 5 perfectly covers the circumstances that the hon. Gentleman has described. Members of Parliament have a responsibility to act in the national interest. I appreciate that we have to evaluate what is in the national interest, but we have channels open to us to do so. All those people whom the hon. Gentleman has brought to the attention of the House have access to police officers—who are Crown servants—to whom they can turn.

Mr. Hattersley

I intervene principally to urge the Home Secretary—if we are to be privileged to hear him speak—to make an early statement on these matters. We were tempted with the news that the Leader of the House might speak, but I understand that the clauses have been rearranged so that he may merely sit here rather than participate in the debate.

I hope that the Home Secretary will speak, for two reasons. First, a problem of the guillotine is that trenchant speeches are followed by an inadequate reply, with no opportunity for hon. Members to pursue a Minister after he has made one statement. Secondly, perhaps in contradiction to that first point, I hope that the Home Secretary will clarify some points that desperately need clarifying and bring the debate back into the realms of reality, particularly in light of what was said by the hon. Member for Lancashire, West (Mr. Hind).

The hon. Gentleman seems to be talking about a different Bill. As I understand it, clause 7 applies to the Bill as a whole. As it interprets the Bill as a whole, nearly all the cases of importance are not covered by the harm test. Clause I is the important clause in interpretation. It prompted the example given by the hon. Member for Thanet, South (Mr. Aitken). Yet the hon. Gentleman talks as though the harm test would solve these problems. He either has not read the Bill or does not understand it. I would not dream of correcting him as categorically as he needs correcting, but I hope that the Home Secretary will put him right and explain that there are categories of public servants.

With respect to the hon. Member for Caithness and Sutherland (Mr. Maclennan), it will not be the man in the street or the Caithness crofter who comes to his Member of Parliament to tell him some crucial information that he needs to know. It will be a public servant or a retired public servant. They are the people of whom we spoke in the Sandys and the Churchill cases. We are considering not the man in the street but the man with special information which he thinks, in the interest of the state, should be conveyed to a Member of Parliament.

Mr. Hind

Does the right hon. Gentleman not agree that a present civil servant, a secret service officer or a retired official will still be subject to the harm test in the situation that he has described?

Mr. Hattersley

Of course I do not agree. I do not know how anybody who has read the Bill or who has heard our discussions can believe that a civil servant in the Security Service, covered by clause 1, is subject to the harm test. The first two days of debate were concerned with the proposition that the security services were not covered by any harm test, but had an absolute obligation. If the hon. Gentleman does not understand that, we shall not make much progress in this matter.

I want to consider the man who is not covered by the harm test and who has information that he thinks important to convey to a Member of Parliament, as in the Churchill or Sandys cases. I shall make my position clear. I am far more worried about protecting the informant than about protecting the Member of Parliament. The hon. Member for Lancashire, West was wholly wrong to say that a Member of Parliament is in any way protected by the Bill. The protected categories are stipulated and Members of Parliament do not number among them; ergo, they are not protected. I have sufficient faith—if that is the word—in the British establishment to believe that in the modern circumstances, even the Attorney-General—a man of undoubted objectivity and probity—would think twice before prosecuting a Member of Parliament for receiving that information or for raising it in the House.

Mr. Gorst

Does the right hon. Gentleman agree that, in practice, Members of Parliament will be protected by Parliament?

Mr. Hattersley

They will certainly be protected in their use in the House of information supplied to them, but the hon. Gentleman will recall that the Home Secretary said earlier that, were I or the hon. Gentleman to receive protected information, although the House of Commons would protect when we used the information here, if either of us went to St. Stephen's entrance and repeated the information outside, that would be a different kettle of fish.

Mr. Budgen

Will the right hon. Gentleman give way?

Mr. Hattersley

I know that the hon. Gentleman is on the right side, so I do not want to deter him, but I want to finish this point.

There would be no legal protection for him or me were we to use that information outside, but I am sceptical about whether the Attorney-General would mount a prosecution, except in the grossest and most extreme circumstances. I give way to the hon. Gentleman, if he is still interested.

Mr. Budgen

Does that not give rise to an unsatisfactory anomaly between Members of Parliament and members of the public? The right hon. Gentleman is really saying that he supported the decision taken in The Daily Telegraph case, when my hon. Friend the Member for Thanet, South (Mr. Aitken), who was then a young member of the public, was prosecuted, as was the editor of The Daily Telegraph, whereas Sir Hugh Fraser, who was then the right hon. Member for Stafford, was not prosecuted, although he had done exactly the same thing, simply because he was a Member of Parliament and a Privy Councillor.

Mr. Hattersley

I am always sceptical when a question begins by asking whether what I am really saying is something other than what I said. I assure the hon. Gentleman that I am wholly on his side in the drift of what he said. I do not believe that a Member of Parliament should have the advantages that I have described. 1 merely suggested that in a wicked world—even the Attorney-General inhabits the same wicked world—it is more likely that a Member of Parliament will escape prosecution than an individual. That is why I said that my principal concern was not for the Member of Parliament who received the information but for the individual who passed it on. It is that individual whom I want to protect.

5.15 pm
Mr. Dalyell

Does my right hon. Friend accept that, although I do not pretend to be able to read the mind of the Ponting jury, it seemed that it weighed heavily with the jurors that, instead of running to the press with information that could have come only from one of the people to whom my right hon. Friend referred, who knew a heck of a lot about the particular subject and how the House of Commons had been deceived, I gave it to the Chairman of the Select Committee on Foreign Affairs, so it was deemed to be a proceeding in Parliament? That is an important point in backing up my right hon. Friend's argument. If these matters are kept as proceedings in Parliament, that may weigh with juries.

Mr. Gorst


Mr. Hattersley

I shall not give way again because, 10 minutes ago, I said that I would intervene briefly, in the hope that I might intervene again after the Home Secretary had made his statement. I have been helped by so much support from hon. Members of all parties that I have gone on longer than I intended.

I want to make a point to the Home Secretary in the hope that he will let us know the Government's views. It seems to many hon. Members that one of the essential elements in our freedom is the right of a man or woman to approach a Member of Parliament on any issue about which they feel the Member of Parliament should know. For a constituent to be prevented by law from telling his or her Member of Parliament some item of information that the constituent believes should be passed on seems to many of us to be a basic contradiction of the liberties that should characterise this place.

I ask the Home Secretary to tell us whether the Government will incorporate amendment No. 74 in the Bill and, if the Government are not prepared to do so, what their objections are. Are the Government saying that Members of Parliament cannot be trusted? Are they saying that the mere fact of pasing information on, in clause 1 cases, is a danger and that a total limit must be placed on all circumstances, whether there is any real need for it or not? We need to know at this early stage whether the Government are prepared to incorporate amendment No. 74 or something similar, or their objections; otherwise we shall not have the proper debate that the subject warrants.

Mr. Richard Shepherd

I support the drift of the amendment. It is important against the background of the saga through which we arrived at the Bill, when one remembers the actions that have been pursued through the courts. The House will recall that during those actions the final judgment that my right hon. and learned Friend the Attorney-General submitted in the case against sundry newspapers made certain contentions. Lord Griffiths then made an observation. In saying that there was an unexceptionable and lifelong duty of confidentiality for those civil servants covered by clause 1(1) and the designated or nominated class of persons, he expressed an anxiety. He said: theoretically, if a member of the service discovered that some iniquitous course of action was being pursued that was clearly detrimental to our national interest, and he was unable to persuade any senior members of his service or any member of the establishment, or the police, to do anything about it, then he should be relieved of his duty of confidence so that he could alert his fellow citizens to the impending danger. That proposition was behind the public interest defence that we tried to insert, which the Government have seen off. The amendment is another route to provide a safety valve in the extraordinary circumstances envisaged by Lord Griffiths, that if everything went wrong, there should be a legitimate way of alerting one's fellow citizens. It seems wholly appropriate that the last line in a democracy should be those who are elected to represent the public's interest in the national forum—the House of Commons.

Mr. Gorst

Suppose that, under privilege, we could reveal the circumstances that my hon. Friend has in mind. Is my hon. Friend not worried that, as prior publication is no defence, the press will not have the defence that the information has been published in the House if it carries the contents of a speech—unless we can get an assurance that the privilege that protects the reporting of our proceedings will be carried forward regardless of what the Bill says?

Mr. Shepherd

That presupposes that it is necessary to expose the iniquity on the Floor of the House. Each individual Member must judge that for himself. I was deeply disheartened by the emphasis placed by my hon. Friend the Member for Lancashire, West (Mr. Hind) on what he perceived to be a responsible Member. One of the glories of this place is that those judged irresponsible often turn out in the long run to be the most responsible. This may sound like special pleading, but in this solemn and over-pompous place it is often judged that quite correct actions are irresponsible. When dealing with liberties we should be mindful that it is often important to say things that run contrary to the popular ethos of the day or to the Government's interest.

Mr. Hind

I am grateful to my hon. Friend for raising that point. Earlier in the debate, the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) correctly picked me up on a point concerning the receipt of a disclosure from someone who has been notified. Surely the person who is notified commits an offence by disclosing the information to a Member of Parliament and someone who is not notified is subject to the harm test. We have a responsibility to consider the matter very carefully—especially in respect of somebody who has been notified. We have to decide where the national interest lies. We have a heavy responsibility in that regard, and must be extremely careful. Channels are open to us—through the Home Secretary and the Prime Minister—to pursue these matters. That was the point that I sought to make.

Mr. Shepherd

At the bottom of each case is a question of judgment. Every citizen has a duty to try to exercise his judgment as best he can, with regard to the nation and the circumstances in which he lives. I respect that point.

I was arguing on the basis of the preface to Lord Griffiths's judgment, and saying that one might possibly conceive of circumstances in which it was necessary to alert the public to a danger. The Government have been consistent in their view that there can be no danger that cannot be remedied internally. They argue that the Bill can satisfy all the possible contingencies that every hon. Member—and Lord Griffiths—can imagine. The Bill is defective in that very assertion. In an important speech yesterday, the hon. Member for Caithness and Sunderland (Mr. Maclennan) talked about that assertion in relation to the European convention on human rights.

The Government are constructing legislation that will bring us before the European Court of Human Rights because it allows only for the internal review of possible grave injustices. The authority of the state alone—unsupervised, and unchecked—may make unreviewable decisions on all these matters. I think that the Bill will fall before the European Court of Human Rights and I do not know many lawyers who think otherwise, although the Government seem to have their own special legal advice on these matters. It is important to caution them again and again about the dangers of not providing arrangements for the independent review of decisions that affect freedom of speech and our liberties in general. That is where the Government will come into conflict with the European court.

Were the option left open to me—the Government have wilfully closed most avenues to us—I should find it extraordinary that they should take the view that there should be no last-chance mechanism by which one can remedy an iniquity or possible danger to fellow citizens of the kind to which Lord Griffiths referred in his judgment.

Lord Griffiths's judgment is not the only judgment that we have had. I consider the Bill very much as the Baron Armstrong Bill. That gentleman has argued for most of the principles in the Bill in front of almost every court that he can find. In each court—in one court after another—the judge has overturned the central contention that there is an absolute lifelong duty, which cannot encompass the possibility that anyone else should ever have sight of a balanced reflection or an alternative view.

My right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour) has repeatedly reminded us of Mr. Justice Scott's observation—that this Government are demanding a degree of confidence that cannot be achieved this side of the iron curtain. Yet we sit here while the Government pass the Bill in to law. It is a mistake, and it will be confounded by a court which, fortunately, can override the judicial decisions and view of the Government, and which is sited outside the realm.

The right hon. Member for Blaenau Gwent (Mr. Foot) referred to the Duncan Sandys case, and mentioned the function of the Committee of Privileges. The Times recently carried an important letter from a former colleague of ours, Mr. Christopher Price. Referring to the nature of privilege, he quoted a Privileges Committee report: The privilege of freedom of speech enjoyed by Members of Parliament is in truth the privilege of their constituents. It is secured to Members not for their personal benefit but to enable them to discharge the functions of their office without fear of prosecution, civil or criminal. The Commons, in their famous protestation of 1621, declared the privileges of Parliament to be the birthright and inheritance of the subject. That is what the House of Commons is about. There is an assault on the very basis of our liberal democracy every time Government assert that only they may take a view of what constitutes national security.

A little later, we shall have a very important debate on the issue of prior publication. That, too, touches the very nature of our democracy. Judgments in the United States and Canada—and in our own history—have overturned many of the contentions in the Bill.

Mr. Dalyell

The hon. Gentleman may not have wanted to quote two further sentences from Christopher Price's letter: This is why the drafters of the 1688 Bill of Rights separated the powers of the High Court of Justice from the High Court of Parliament so clearly; it was also the basis for the acquittal of Clive Ponting by a British jury. They saw Ponting's action, like that of Duncan Sandys, as in the public interest and therefore incapable of being criminal. Christopher Price's point is doubly valid.

Mr. Shepherd

I should have read the House that assertion because it is important to remind the Government that the course on which they have embarked serves neither the interests of the Government and the Conservative party, nor those of the House and the country.

As there is unlikely to be a debate on clause stand part, I should add that I do not think that the amendment goes far enough. It is defective, because, as has been pointed out, there is a tremendous anomaly. My right hon. Friend the Home Secretary has advised us that one of the liberalising aspects—in fact, it is a dangerous aspect—of the Bill is that former and existing Security Service officers could be called to give evidence in court. A newspaper that cites its source could render itself liable to prosecution, albeit with some form of damage test. It is quite respectable for a newspaper to want to call its source to give aid to its defence. The Home Secretary accepts that there will not be Crown prosecution immunity certificates and tells us that that is one of the risks.

Clearly, the contention is that the Crown servant—the member of the Security Service—may give the information only to fellow Crown servants. That is the only way in which Crown servants can be relieved of their duty of confidentiality. What happens when the Crown servant is asked to give evidence in court? He has a conflict of duty, because he has the duty of a citizen to give evidence under oath but the Bill explicitly rules that out.

The law reform committee of the Law Society of Scotland says of this clause: This would permit a disclosure by a Crown servant or, in certain cases, another notified person as being with lawful authority if it was made in accordance with his official duty. We are concerned that this would still leave cases of conflicting duties where the position of the person concerned would be unresolved. If a Crown servant is giving evidence on oath, for example, and is asked in effect to disclose information covered by clause 1(1), he clearly has, in one sense, a duty to disclose, but this cannot be called his official duty as such. We do not comment as to which duty should prevail in such circumstances, but believe that a clear resolution should be provided by statute for such a conflict. That seems to be a wholly respectable position to adopt.

While I do not think that the amendment is the most satisfactory way of remedying the anxieties that will clearly confront our constitution and, I believe, will render the value of this House, in the eyes of citizens, as being ever more marginal than they now perceive it to be, I commend it to my right hon. Friend as a way of helping the Government out of the impossible dilemma that they have provided for themselves.

5.30 pm
Mr. Heffer

We may not agree entirely with everything that the Member for Aldridge-Brownhills (Mr. Shepherd) has said, but the Government should at least take a look at this amendment and perhaps bring forward a more suitable one covering the proposals that have been made today.

I should like to comment on one or two things that have been said about this matter. My right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) made the point that the Attorney-General would not be rushing to prosecute Members of the House of Commons—and he has great respect for the right hon. and learned Gentleman, as I have. What worries me is whether "Queen Margaret" or "Mother" would be in quite the same frame of minor Would the Attorney-General make the decision? Would the Prime Minister be breathing down his neck? It is just conjecture, but I am not happy about the way the Government are going at the present time. I am not happy about the Prime Minister's actions.

The Attorney-General (Sir Patrick Mayhew)

I am grateful for the hon. Gentleman's kind compliment, but what he has just posited as a possibility is rather in conflict with it. May I assure him that every one of my predecessors in modern times has always brought to the question of prosecution a judicial mind and would have dismissed instantly any suggestion that he could be subjected to any pressure of the kind that the hon. Gentleman has just mentioned. In my experience this has been so clearly understood by all the Attorney's colleagues as really not to be worthy of sensible consideration at all.

Mr. Heffer

And long may it remain so. What worries me is that if Ministers—even the Attorney-General—came into total conflict with the right hon. Lady they might find themselves out of a job.

Mr. Budgen

Of course, there is great conspiracy among Law Officers. They all scratch each other's backs and try to enhance the dignity and importance of their office. But, as the hon. Gentleman will recall, the first Labour Government were brought down as a result of a great row over the Campbell case. Even in recent times very disagreeable allegations were made against Mr. Sam Silkin in relation to his attitude towards the Clay Cross councillors. The back-scratching was not very effective at that time. So the idea that all Attorneys-General are persons of the utmost political virginity in all circumstances is simply not borne out by history.

Mr. Heffer

I do not disagree with the hon. Gentleman; I am just making the point that I am not too happy with the way things in government are going at the moment. I just hope that the Attorney-General and the other Law Officers, as perhaps they should have done on past occasions, will stand up to the Prime Minister of the day and say quite clearly, "So far as we are concerned, there is going to be no going down that path." That is the only point I am making. It is just a slight caveat in relation to the point made by my right hon. Friend. I was not actually disagreeing; I just wondered what the position might be in the present situation. However, I am glad that this aspect of the matter has been brought out.

I agree with the hon. Member for Lancashire, West (Mr. Hind) that a Member of Parliament obviously has to be responsible. We all get documents through the post, and people come to see us. If we are intelligent, responsible Members of Parliament, we look at those documents closely and decide whether they are important and whether they contain anything significant concerning the national interest. If we think that the sender is a nut-case, we put the documents in the fire or in the bin.

But from time to time somebody will come along with a significant document. As the hon. Member for Caithness and Sutherland (Mr. MacLennan) said, it may not be a civil servant, although I agree with my right hon. Friend that perhaps it would be. But it could be somebody else; the clause makes the point that it does not have to be a civil servant. However, somebody had been notified and, to that extent, was responsible. Such a person might come to one with information, and one might well decide that it concerned a matter of the greatest national importance,.

I believe that a Member of Parliament should have that role. Who else? The suggestion that it should be a policeman is ludicrous. I do not know where the hon. Gentleman who made that suggestion lives. Will he go to his local police station and say, "I have this information. it is of the gravest importance, and I should like to speak to the chief constable"? He might get the reply, "I don't know about that."

Let us be serious about this matter. If something is of grave national importance surely the Member of Parliament has a responsibility to do something about it. I accept that there may be one or two Members of Parliament who wrongly use privilege in the House of Commons, but that is rare.

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

One is enough.

Mr. Heffer

I am just giving an example. It may be that one or two Members have used privilege wrongly. In all my years in the House I have not seen it happen, although there may have been some things about which I have thought, "I would not have done that."

Mr. Maclennan

The Home Secretary has just said, "One is enough." Does the hon. Gentleman agree that one police constable misusing information that had been put in his hands would also be enough?

Mr. Heffer

That is absolutely right—I could not have put it better myself.

The fact is that most Members of Parliament—in fact, all that I have known—raise matters in this way only when they consider them to be matters about which the nation must know. It is that important. Certainly, I would never use the privilege of the House of Commons except in respect of a matter that the nation needed to know about and had a responsibility to act upon. I do not think that Members of Parliament use their responsibility—or their so-called responsibility—wrongly. If hon. Members have proof to the contrary they have to argue that case, but in all the years I have been here I have not known Members to use privilege in that way.

The important point has already been made that we are the representatives of our constituents. We are not here as individuals. The people elect us. We are their voice. If someone comes to a Member of Parliament as a representative of the electorate and says, "I feel you should know about this matter," or, "I want you to act upon this in the interests of the nation," the hon. Member has not just a responsibility but a duty to do something about it. Therefore, that should be covered in the Bill.

Let us consider the point about going to a police officer or to the chief of police in relation to the civil servants who gave information to Churchill.. What would a police officer have done if he had got that information? The only way the information could have been used in the interests of the people was for Winston Churchill and his friends to act upon it. When we look back at history, we can only thank God that they did. Unfortunately, there were too many people ranged against them, so their action was not as effective as it might have been, but things would have been far worse if the information had not been passed to them and they had not used it. Anyone who took similar action now would be in real trouble under the provisions of the Bill. Members of Parliament should have the responsibility to act in similar circumstances.

In the Watergate case, the revelations were made to the press by civil servants around the President. We know how it happened. We have read the books and seen the films. Elected representatives should have had the opportunity to act on the information in the interests of the United States.

All Governments, including Labour Governments—despite my right hon. Friend the Member for Blaenau Gwent (Mr. Foot) for whom I have a great affection—tend to use their power to keep things secret and to act against people who want to open matters up. I do not know why, because when I was a Minister I never found a secret worth bothering about. I do not know what people were on about when I was told, "Do not let the world know." What was I not to let the world know? I never knew any great secrets about anything.

For years I was classified by some organs of the press as an agent of Moscow because I was once a Young Communist. I used to joke that the worst thing that had ever happened to me was that when Stalin died, he stopped sending me a cheque regularly. I never got a cheque, but I am sure that the press thought I did.

Absolute nonsense is talked about secrecy. It is time we had a different discussion about how we can make things available to the people. The greater the lack of secrecy and the more people are involved, the more democracy there will be.

Mr. Dalyell

It is not so much that secrecy is about national security; it is often about political embarrassment. That is what causes the problem. A great deal of this problem has been about lying to the House of Commons rather than about national security.

Mr. Heffer

I could not agree more. As a Minister I regularly wrote a column for the Walton Times,. I had written it before I became a Minister. I also used to write a column for The Times, but I had to stop that. I continued to write a column for the Walton Times. I do not know the circulation of the Walton Times, but it was not great. The Prime Minister of the day said that I had to stop writing that column. [Interruption.] It was not for literary reasons; he thought that I might embarrass the Government. I said in pleasant terms, "Thank you very much; get knotted," because I had no intention of stopping my column in the Walton Times.

Mr. Dalyell

Did the Walton Times have a circulation in part of Huyton constituency?

5.45 pm
Mr. Heffer

No, it did not, but some people in Huyton might have read it. That was absurd; it was secrecy taken to the nth degree. On one occasion I got a notice from the Prime Minister that I should not appear in a television programme. Where did the notification come from? It came from Moscow because the Prime Minister was on a visit there. How the heck he knew that I was about to appear on a local television programme, I do not know. All this secrecy is absolute nonsense and it is time it stopped.

The hon. Member for Caithness and Sutherland may not have used the best words in his amendment, but the Government should agree that it raises an important point involving the vital role of a Member of Parliament. The Government should agree that Members should be the voice of the people and should be the recipients of information that people want raised publicly. If we cannot get the point about public interest into the Bill, at least hon. Members should be able to act in the public interest. Therefore, I ask the Secretary of State to note the arguments used in the debate and to bring forward on Report a suitable amendment covering the basic principles advocated by various hon. Members.

Mr. Hurd

It is always agreeable to hear the autobiography of the stormy youth of the hon. Member for Liverpool, Walton (Mr. Heffer). This is the third time that I have heard it during these debates. I am sorry that, perhaps because of the pressure of the timetable motion on this rushed, hurried debate, he left out the next chapter about the clicking on his telephone. Perhaps we can hear that later, as it is very good stuff.

Mr. Heffer

It has stopped now.

Mr. Hurd

It is one of my worries that the hon. Gentleman has become respectable. I am afraid that he has produced evidence to that effect. I shall try to show later that inadvertently in part of what he said, he mortally wounded the case for the amendment.

As the hon. Member for Caithness and Sutherland (Mr. Maclennan) said in his modest introduction, this is a modest amendment in that it does not cover Crown servants. It covers any other person and members of the public. Therefore, it does not attract the advantages that some of its supporters have argued for it. I will not dwell on that point, which is rather technical. The hon. Gentleman was making a different point about a different part of the public than that made by many of his supporters on the Conservative Benches.

This trenches on matters of privilege. That is why the Minister has to choose his words carefully. The Bill does not affect the operation or the present extent of parliamentary privilege which has developed over many years; nor does it seek to add to it through the medium of primary legislation. It is not for the Executive or for Ministers at the Dispatch Box to tell the Committee the full extent and doctrine of parliamentary privilege, because these are ultimately matters for the House of Commons.

The right hon. Member for Blaenau Gwent (Mr. Foot) rightly reminded the Committee of the Sandys case. He said that it led to an inquiry into the operation of the Official Secrets Act 1911. The report of the Select Committee was published in April 1939. It is worth making three short quotations from that report because they are germane. The report said: Privilege enjoyed by either House of Parliament or by members of either House in their capacity as members can be abrogated only by express words in statute". I think that we would all agree with that. There are no such words in the Bill. It continued: Your Committee are of the opinion that disclosures by members in the course of debate or proceedings in Parliament cannot be made the subject of proceedings under the Official Secrets Act". That is a statement of the extent of privilege and I do not think that anyone would disagree with it. The report concluded: it would be inadvisable to attempt by legislation or otherwise to define with precision the extent of the immunity from prosecution under the Official Secrets Acts to which members of Parliament are or ought to be entitled.

I know that later committees have returned to the question of putting some definition of parliamentary privilege in statutory form, but that raises questions which are outside the Bill. The hon. Member for Caithness and Sutherland and, in a more ambitious way, his supporters, seek to extend by statute the operation of parliamentary privilege, thus making lawful any disclosure of official information protected under the Bill by a member of the public to a Member of Parliament.

The matter was raised earlier this week when Mr. Speaker said in response to a point of order during the timetable debate on 13 February: As the rules stand at present a communication from someone outside the House to an hon. Member is not privileged."—[Official Report, 13 February 1989; Vol. 147 col. 114.] That is a statement by Mr. Speaker of the existing situation. The question is whether that existing situation should be changed.

In answer to the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), the House should think long and deep before extending privilege not to hon. Members but to members of the public who might wish to communicate with them, and think about whether it wishes to provide by statute some privilege by which a member of the public might communicate with a Member of Parliament on a possibly criminal matter. I believe that the House should reflect deep and long before doing that.

Mr. Dalyell

I questioned Mr. Speaker on this matter and was told by the Clerk of the House that the distinction was between members of the public volunteering information and, for example, witnesses who had been called before a Select Committee and who were covered by privilege. Is there really a distinction between those who are called by a Select Committee as official witnesses and members of the public going to their own Member of Parliament? I think that that is a rather dangerous distinction.

Mr. Hurd

I think that it is a crucial distinction, because of the point that I have just made. In effect, the amendment is extending privilege in a way that would have implications and ramifications which the House would need to consider very carefully.

Mr. Gorst

Will my right hon. Friend give me an assurance that there will not be any narrowing of privilege in the sense that, if an hon. Member were to reveal on the Floor of the House something that was privileged and it were reported by the press, the newspaper reporting the matter would not be treated in any way differently from the way in which newspapers are treated in reporting our speeches today?

Mr. Hurd

There is no narrowing of privilege under the Bill. In one respect, which I shall mention, the position of individual members of the public is improved.

I shall now consider the matter from the other point of view that the right hon. Member for Sparkbrook mentioned—the view of the member of the public, or Crown servant.

Mr. Hattersley

I am beginning to understand the Home Secretary's debating technique. He told us that to allow the public to reveal such matters to Members of Parliament is a matter on which the House will want to think long and hard. We have thought hard for as long as the guillotine will allow, but we need to know the Home Secretary's view on the matter. We want to know not that it is a difficult problem, but whether he thinks it is appropriate. If it is not appropriate will he try and justify an assertion which up to now has been wholly unsubstantiated?

Mr. Hurd

I am coming on to my view about putting it into statute. What I have said up to now has been rehearsing the present situation in terms with which I do not think the right hon. Gentleman disagrees. However, it is important because Opposition Members have made claims that the Bill restricts parliamentary privilege. I have already established that it does not, but from the point of view of us all as Members of the House of Commons, the amendment lays down a completely new principle which I do not think can be dealt with within the confines of the Bill. It raises the point whether it would be sensible to extend privilege to members of the public communicating with Members of Parliament over matters which might be criminal. That is a major matter which goes beyond the confines of the Bill.

I now turn to members of the public or, although they are outside the terms of the amendment, Crown servants or members of the security and intelligence services. Members of the public who are covered by the amendment—people who are not Crown servants—would not in the majority of cases be affected by the amendment. It would have no effect on the ability of a person to consult his Member of Parliament about some piece of unauthorised official information which had come into his possession. In most cases, the information would not be protected by the Bill. Furthermore, in all but one of the areas that are protected by the Bill—that is warrants, which we shall discuss later—a disclosure by a member of the public is subject to a harm test, as my hon. Friend the Member for Lancashire, West (Mr. Hind) said, or in the case of crime, its equivalent, which means that it has to be proved beyond reasonable doubt.

It would be an offence for a member or former member of the security and intelligence services, or someone who is notified under clause 1—the general category with which the Committee is now familiar—to disclose information relating to security or intelligence to a Member of Parliament. That is the nub, not of the amendment, but of the argument advanced by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and the right hon. Member for Sparkbrook. Are we really saying on reflection that that would be a wise conclusion?

I now turn to the speech of the hon. Member for Walton. Any hon. Member—it does not have to be the relevant constituency Member—might well receive such information. The hon. Member for Walton has said that two or three hon. Members might abuse privilege, but I am not talking about abuse of privilege. An hon. Member, on receiving information, which might be of enormous sensitivity, from members or former members of the security or intelligence services, might, in the light of his own political convictions, decide to publish or to announce to the House what he had been told. The damage might be very substantial and would be fully protected by the privilege of the House.

The analogy with a police officer mentioned by the hon. Member for Caithness and Sutherland is wrong, as the police officer would not be protected while a Member of Parliament would be protected. When I said that it only needs one, I was simplifying the argument, but some Members of Parliament might feel, not as a matter of abuse but as a matter of political conviction, that it was their duty to read out what had been disclosed, in a manner fully protected by privilege. In that case, the damage would have been done. Does the Committee believe that it would be sensible to embody that risk in statute?

Mr. Maclennan


Mr. Winnick


Mr. Heffer


Mr. Hurd

I shall give way to the hon. Member for Caithness and Sutherland who tabled the amendment.

Mr. Maclennan

I do not understand the Home Secretary's argument that a police constable would not be in the same position as a Member of Parliament. As I read the definition in the Bill, the police constable is a Crown servant and is covered under clause 7(3)(a). A police constable could take it into his head to act inappropriately, just as a Member of Parliament might. He is in pari materia.

Mr. Hurd

He is subject to discipline and under the law, whereas the Member of Parliament has the full protection of privilege, as long as he makes his disclosure not outside St. Stephen's entrance but on the Floor of the House or in a Select Committee. There is a basic difference.

6 pm

Mr. Heffer

If the individual goes to a police constable, he cannot say anything more about it. He certainly cannot go to the public. He can go to an hon. Member, but he cannot go outside. If he did, he would immediately be in trouble. The hon. Member for Caithness and Sutherland (Mr. Maclennan) said that, no matter how strongly an individual may feel, no matter how an hon. Member may feel on receipt of the information, the information must not be disclosed. That means that the Government are saying that, for all time, no matter what the problem is or how seriously it might be against the national interest, it must never be disclosed and nothing is ever to be done about it. That is the most serious statement that any Government can make. It is like what has happened in the past in the Soviet Union, eastern Europe, and all the countries that the hon. Gentleman and I have opposed because they have kept from the public the real interest of the people.

Mr. Hurd

The hon. Gentleman is mistaken. I am coming to the rights of a Member of Parliament if he were to receive such information. I am still at the earlier stage. I am talking about the absolute duty, as set out in clause 1, of a former member of the intelligence and security services. The amendment would limit, restrict or remove that absolute duty in communicating with a Member of Parliament. It is right that that should not be permitted by statute, for the reason I have given. I simply believe—I am sure that the overwhelming number of our constituents would believe it—that that is not a sensible course to take. Therefore, I could not recommend it to the House.

Mr. Gorst

Is not the protection of free speech a matter for the House to decide? If there is a danger of abuse, is it not for the House to decide, and not for the Government to lay down the parameters in statute?

Mr. Hurd

That is one of the points that I have been making. The amendment suggests that, by statute, we should create the risk that I have described. I simply do not think that many people would regard that as a safe or sensible thing to do. My hon. Friend is right. Suppose we did take that risk and put it into statute, and an hon. Member does what I fear, and uses parliamentary proceedings to disclose something of great difficulty or danger. There might then be questions about privilege and about whether he had gone too far. I am not postulating an abuse of privilege; I am postulating somebody who, because of his genuine political convictions, felt that it was his duty as a Member of the House to disclose information.

Mr. Winnick

Will the right hon. Gentleman give way?

Mr. Hurd

I will give way to the hon. Gentleman, and then I should like to answer other points.

Mr. Winnick

As the Home Secretary has just acknowledged—and the hon. Member for Hendon, North (Mr. Gorst) made this point—if there is an abuse of parliamentary procedure, it is for the House to take any action that it considers necessary. The lurid picture which the Home Secretary is painting concerns alleged spies and someone reading out a list of their names on the Floor of the House. That will not happen every one, 10 or 15 years; every case in which abuse has occurred is far more likely to be a Cathy Massiter type of case. What she revealed confirms our view that if such abuses occur, they have nothing to do with foreign agents, spies or anything else, and they should be dealt with on the Floor of the House.

Mr. Hurd

I do not think that I have been at all lurid. I have made no accusations. I have been extremely careful in the words that I have chosen. I do not wish to be pushed further into suggesting abuse of privilege, which the hon. Member for Walton himself suggested on a limited scale. I have made the point that I wanted to make—it is an important one. Honestly, it is a strange proposition before us, and it would be hard for our constituents to understand it.

To complete the argument, I refer to the civil servant—that is to say, a person who was not a member of the public in the terms of the amendment, and not a member of the security or intelligence services or notified. My hon. Friend the Member for Lancashire, West was quite right. A person in that category making unauthorised disclosures to a Member of Parliament may be committing a disciplinary offence. Whether he commits a criminal offence will depend on whether the disclosure satisfies the harm test in the Bill.

The point made by my hon. Friend the Member for Thanet, South (Mr. Aitken) has come up several times. It has also been made by my hon. Friend the Member for Hendon, North (Mr. Gorst). What is the position if a Member of Parliament receives such information? There is no offence of receipt of information in the Bill—everybody agrees with that—but there has been under earlier proposals. Quite a substantial change has been made. The Member of Parliament has not committed any offence by receiving the information. What he could do in the circumstances described would depend on the harm which he judged a disclosure by him was likely to cause. The options are wide. If he considered that any further disclosure would be likely to cause harm under the Bill, he could put the matter to the Secretary of State, under Clause 7(3)(a), or, if he was uncertain, he could seek authority to disclose it. He could behave in the way in which my hon. Friend the Member for Thanet, South evidently behaved in the case that he told us about.

The right hon. Member for Sparkbrook is right. We are not concerned so much with the position of the Member of Parliament, because that is safeguarded under a combination of the Bill and the existing extent of privilege. We are talking about the position of the member of the public and, in particular, a member of the security or intelligence services. I do not believe that it would be wise, from the purely parliamentary point of view, from the point of view of the extent of privilege, or from the point of view of the protection of necessary secrets against risk to accept the amendment or, rather, to accept the line of argument that the amendment begins and which my right hon. and hon. Friends have developed.

Mr. Richard Shepherd

Will my right hon. Friend refer to evidence in court, the duty as contained under the statute, and the duty to give evidence?

Mr. Hurd

I am obliged for the reminder. It is a point that my hon. Friend has made.

If a person acting as a witness in legal proceedings is asked to disclose official information and he believes that to do so would be an offence under the Bill, he may explain to the court that he does not believe that he can give the information without committing an offence. It is then for the court to decide whether to require that the information be given. If criminal proceedings cannot be concluded without a disclosure of official information which is harmful, or more harmful than the offence which is the subject of the proceedings, then the prosecution may have to be withdrawn. If a Crown servant is required by the court to give information, it is not an offence for him to do so, as it is obviously in accordance with his official duty.

Mr. Dalyell

The hon. Member for Aldridge-Brownhills (Mr. Shepherd) referred to the Scottish Law Society evidence. I listened carefully to the Home Secretary. He will correct me if I am wrong, but I do not think that he has clarified the point. The Law Society of Scotland is concerned about a disclosure by a Crown servant (or in certain cases, another notified person), as being with lawful authority, if it was made in accordance with his official duty. We are concerned that this would still leave cases of conflicting duties where the position of the person concerned would be unresolved. To be fair, I do not think that the Home Secretary addressed this matter. It goes on: If a Crown servant is giving evidence on oath, for example, and is asked in effect to disclose information covered by clause 1(1), he clearly has, in one sense, a duty to disclose but this cannot be called his official duty as such. Incidentally, this was the result of a good deal of work by the officers of the Law Society and their working party. It goes on to state: We do not comment as to which duty should prevail in such circumstances but believe that a clear resolution should be provided by statute for such a conflict. I gave that statement to officials and I hope that the Home Secretary can clear it up.

The hon. Member for Thanet, South (Mr. Aitken) spoke about the Blunt case. This is not the occasion to go in detail into that case, but I am in a minority and believe that such minorities should be able to voice an opinion. I was horrified when the statement on Blunt was made. I was also horrified when the statement was made on Hollis. I was equally horrified when statements were made on Cavendish.

If Ministers are to make statements of that kind in Parliament, they had better be full statements. Frankly, Cavendish wrote his book, which caused so much difficulty, because he thought that the statement that was made was grossly unfair to a mutual friend of his, and of mine, and possibly of the Home Secretary's, the late Sir Morris Oldfield. It was the unfair treatment of Oldfield that caused Cavendish to write that book.

This is not the time or place to reminisce, but if statements were to be made on Blunt, the whole story should have been told because—I put it not higher than this—Douglas Sutherland was possibly in a position to know that Blunt acted in the way that he did partly because he was under the instructions and orders of the late Guy Liddell and the late Dick Brooman-White, who later became the MP for Rutherglen and who had been a senior officer in the intelligence services.

If statements of that kind are to be made, it behoves politicians to tell the full story, and therefore we must be extremely careful. I appreciate that we are under the guillotine, and although the Home Secretary does not have a lot of time, I hope that he will at least comment on the Law Society of Scotland point.

Mr. Gorst

I would have liked the Home Secretary to more specific when replying to my intervention in which I asked whether something revealed in the House and then reported by the press would in any circumstances attract the possibility of prosecution. I may not have heard my right hon. Friend correctly, but he did not seem to make a clear and emphatic statement on whether any change is likely to take place in that respect as a result of the Bill.

Will the Bill make any change in the position of a Member of the European Parliament, or will he remain in exactly the same position as he is now?

My next question arises out of the possibility of information of a classified nature being supplied to an hon. Member on an anonymous basis. This is not as fanciful as my hon. Friend the Member for Thanet, South (Mr. Aitken) implied. I recall a few years ago receiving an anonymous letter informing me that a considerable security risk attached to some people employed in the Palace of Westminster. I was inclined to treat the matter in the way that I treat all anonymous letters, but the terms in which it was couched and the information given was sufficiently specific to persuade me to pass it on to the authorities.

I heard nothing for about two months. Then an official of the House came to see me to assure me that the matter had been followed up. There had been a specific security risk, I was told, and the matter had been dealt with. I mention that case to show that occasionally—it may happen only once in a decade—the odd anonymous tip-off that an hon. Member receives—remembering that some members of the public feel that only their MPs are in a position to follow certain things up—must be followed up, or one takes the risk of something dangerous being ignored.

If information of an extremely sensitive nature is brought to one's attention, one draws it privately to the attention of the relevant Minister, or whoever else. One hears nothing and in due course one inquires whether anything has been done. Finally one is told, "We have looked into it. We think we know from where you got the information. We have dealt with it. The man is a nut." That is the end of the story.

One can be left with the feeling that that is not enough and that one should pursue the matter. As I say, this may happen only once in a decade—even once in a generation—and one is left feeling that something is being hidden. One is left wondering whether the tip-off, received anonymously, came from someone who has gone through all the procedures and feels that there has been a cover-up.

6.15 pm

What will happen in such a case if one becomes persistent? One may behave in the way in which tin. hon. Member for Linlithgow (Mr. Dalyell) behaved over the Belgrano affair. One may refuse to take no for an answer, and whether one is right or wrong is neither here nor there. One is persistent and, let us suppose, one is on to something. I want to be assured that there will he no question of making one a notified person so that one can never reveal exactly what one has discovered.

I believe that there is danger in this legislation of creating a new class of informants—not those who give their names but those who anonymously give information which one must then decide how to use, and if the cover-up continues despite one's inquiries, one may be forced eventually to reveal it on the Floor of the House. That bothers me about the part of the Bill with which we are dealing.

Mr. Jeff Rooker (Birmingham, Perry Barr)

I hope that the Home Secretary will speak again and answer various points that are being raised following his last remarks.

We have heard the expression "nut-case" used by hon. Members on both sides of the Committee to describe people outside who might wish to raise with us matters that might not seem, as it were, to be quite normal. Hon. Members will agree that those are the very issues that we must watch carefully—the persistent people who raise matters that appear dodgy, stupid and vexatious. They are the very cases at which we look carefully because of the niggle at the back of our minds, "This must not slip through the net just in case there is the germ of some substance of a complaint." The idea that Ministers or others might say, "This is a nut-case; just ignore it; everyone knows about it and nobody has bothered to do anything about it," could be dangerous.

I have served in the House for only 15 years. I was about to say that I could not recall a certain action being taken by a Member of Parliament. I should refer to a Member of the House of Commons because, in the terms of the amendment, there is no such person as a Member of Parliament. The proposal is deficient because it would cover Members of the other place, whereas we are really speaking exclusively of Members of the House of Commons.

In any event, I have not known an hon. Member to use—not misuse—privilege in bad faith. That is the test. I have used it and subsequently I have apologised, but not in relation to an issue as significant as that which we are discussing. [Interruption.] I think that the Home Secretary said, from a sedentary position, "One is enough," and I agree that it would be enough if only one hon. Member used privilege in bad faith.

It could be argued that it is not possible for a Member of Parliament to abuse privilege. The question is whether privilege is used in good faith and as a last resort.

The Home Secretary, in responding to my right hon. Friend the member for Birmingham, Sparkbrook (Mr. Hattersley) drew a distinction between the privilege that exists when a member of the public contacts a Member of the House of Commons, and that which exists when a member of the public is called to give evidence to a Select Committee. The right hon. Gentleman said that the witness before a Select Committee is participating as part and parcel of the proceedings of the House.

The Home Secretary also says that the amendment goes too wide. Today, unlike 10 years ago, there is a Select Committee covering every activity of Government—save the Scottish Office, for reasons that we understand. Given that an individual cannot send a letter addressed "To Parliament", because it would be opened and sent to the sender's constituency Member—which is something that the Home Secretary wishes to avoid—what would be wrong in that member of the public, who I accept is most likely to be a former civil servant, writing to the chair of, or the Clerk to, the relevant Select Committee? Such a communication would surely carry with it some privilege in respect of the person who sent it.

The Home Secretary will not think about my suggestion now, and will probably dismiss it. However, we have not yet reached the end of the Bill's passage through this House. I presume that there will be a Report stage, when amendments will be tabled. The Leader of the House indicated that that will be so, if there is time.

Mr. Hurd

Be relaxed.

Mr. Rooker

I am relaxed, but the Home Secretary is very relaxed because, as a result of the bad faith among members of the Government Front Bench, Ministers know that they are under no pressure to answer questions or to respond in debate. They are the most relaxed set of Ministers imaginable, because they enjoy the protection of the guillotine. Nevertheless, I ask the Home Secretary to give the matter further consideration before Report. It was the right hon. Gentleman who drew the distinction between an individual corresponding with a Member of Parliament and a witness before a Select Committee. I take that distinction one stage further, introducing the individual who discloses information to the Clerk to, or Chairman of, a Select Committee.

The hon. Member for Hendon, North (Mr. Gorst) asked about the reporting of the House, and the Home Secretary was not as clear as he might have been in replying to that point. The right hon. Gentleman only has to say that there will be no changes from the present position, applying as we debate the Bill, when the Bill is enacted. I do not refer to future television or radio broadcasting, but to the existing provisions for the press and broadcasting authorities, which I trust will remain the same when the Bill becomes law. If the Home Secretary gives that reassurance, he will satisfy right hon. Members in all parts of the Committee.

Mr. Foot

I hope that the Home Secretary will consider the points raised by my hon. Friend the Member for Birmingham, Perry Barr (Mr. Rooker), which relate to additional matters that Parliament should carefully consider. Since the Sandys case, the way in which the Select Committee on Privileges operates has been altered in a way that I thought provided for greater protection and should make the Government more willing to follow the course that some right hon. and hon. Members advocate. As matters stand, a right hon. or hon. Member cannot just raise a matter of privilege on the Floor of the House, but must first take the matter up with Mr. Speaker. So some further protection is given there.

From what the Home Secretary says, it appears that no alterations will be made to the operation of the Official Secrets Act 1911 as it applies to Members of Parliament. The right hon. Gentleman gave reasons why he does not believe that there should be such an alteration. If that is the case, we are back to the Duncan Sandys position. The report of the Committee of Privileges on that case did not mark the end of the matter in the minds of those people who felt that they had suffered under the Official Secrets Act 1911—the Churchillites, the Duncan Sandysites and the rest. They still felt that the report of the Committee of Privileges was insufficient to deal with the situation, and that the legislation should be amended. That is what Churchill wrote about, and I have referred to that matter on two or three occasions. I invite the Home Secretary to read the words that Churchill wrote on that subject.

Thirty years later, when we propose making an alteration after all those years, the Home Secretary still says, "There is no real change to that aspect," for the reasons he gave. I am not arguing that amendment No. 74 is wholly satisfactory. I believe that the change required could be effected in a different way. But I also believe that, after all those years, after all the arguments and protests that have been made, and given the opportunity we have to devise a new secrets Act that will govern our country's affairs for many years to come, the Government should be prepared to table an amendment that will guarantee to Members of Parliament, and to any person approaching a Member of Parliament, better protection than there has been in the past—and better protection than there will be if the Bill is allowed to go forward unamended.

The Attorney-General

Perhaps I may be allowed a brief outing, to avoid the perils of over-relaxation to which the hon. Member for Birmingham, Perry Barr (Mr. Rooker) referred.

As to the Scottish point and the disclosure of protected information in legal proceedings, the categories of protected information specified in clauses 1, 2 and 3 have a common feature: they all apply to a Crown servant who makes a damaging disclosure of any information … which is or has been in his possession by virtue of his position as such. In other words, it will have been by virtue of his position that he came by the information in question. What will happen if that individual is called upon to divulge that information in court? He may say, "I do not believe that I ought to disclose that information." What will happen if he is pressed?

As my right hon. Friend the Home Secretary said, if he is giving evidence for the prosecution—and it will virtually always be in those circumstances—the prosecution can say that, if he does not wish to give evidence and the court is not prepared to give an order, the proceedings will have to be withdrawn if the matter is crucial. But that seems to be so far-fetched as to be unlikely to occur. If matters had got to that stage, the prosecution would have considered it beforehand.

6.30 pm

If, on the other hand, the court orders that person to give evidence, he is surely giving evidence in accordance with his national duty, which is the formula found in clause 7, which sets out the circumstances in which disclosure for the purposes of this Bill is made with lawful authority. Of course, it is made then, I suggest, in accordance with his official duty because, if he is a civil servant, it must be in accordance with his official duty that he should comply with an order of a court made in connection with any information that has come to him by reason of his official position.

I believe that that is all that need be said to allay Scottish and other anxieties on this point.

I will give way to the temptation to answer one point made by the right hon. Member for Blaenau Gwent (Mr. Foot). He says that no change has been made by this Bill in the position of Members of Parliament vis-a-vis the Official Secrets Act 1911. I suggest that a very important change has been made: no longer will they be guilty of an offence of receiving protected information.

Mr. Hattersley

The Home Secretary having given the Committee his views on the amendment, perhaps I can briefly do the same.

I do not dismiss in any way the central point that the Home Secretary made. He was either too polite or too pusillanimous to put it in the crude terms that I shall employ, but, as I understand his case, his problem was that, if this amendment is carried, a member of the security services who provides information to a Member of Parliament does so with impunity. Then the Member of Parliament, acting properly in one sense under the rule of privilege, makes that information public in the House of Commons and is not prosecuted for doing so. We do riot have to describe the situation which is the Home Secretary's fear to realise that there is a problem at least of a theoretical sort. But I cannot conceive of a Member of Parliament's making public the sort of information which the Home Secretary fears, or ought to fear, might be made public.

Let me explain what I mean by that. It is not based on any over-elaborate or over-romantic view of Members of Parliament; any such views as I might have had 25 years ago have been dispelled over the past quarter of a century. But I cannot imagine a Member of Parliament, say, being told the name and address of an agent in place and revealing that in the House of Commons. What a Member of Parliament might reveal in the House of Commons is information which is damaging not to the interest of the state but to the interest of the Government. Again, we come back to the nub of the question when we think about the sort of revelation that the Home Secretary fears.

The Ponting case has been an example in much of our debate. We have been told throughout the debate by the Home Secretary and others that for the aggrieved public servant there are proper channels of communication. I do not think that, despite the reference to this proviso, anyone was suggesting that Mr. Ponting would have been better advised to describe the situation to a policeman. Nor, since Mr. Ponting was correcting the international errors spread by the Ministry of Defence, could it have been in Mr. Ponting's best interests to report the matter to the Secretary of State for Defence. It is in that sort of situation, where the public service officer, the public servant, believes that he must report to a Member of Parliament, not because it is his wish to undermine the interest of the state but because he believes that the Government have acted improperly, that we believe that the revelation ought to be made to a Member of Parliament.

If the Government vote against this amendment, or at least if they vote against it without promising to put something technically more accomplished in its place, they are, in my judgment, ending what I would describe as the Winston Churchill situation before the second world war. It is a long time since I read Martin Gilbert, but the information that was supplied to Mr. Churchill and that he used with such success to end the days of appeasement and the pretence that we were prepared and were preparing was almost always supplied to him by men who, under the present Bill, would be classified under clause 1 or notified that they were in the special category requiring them to maintain confidentiality on all occasions. We are preventing that from ever happening again, or we are attempting to.

I make two points to qualify my own assertion. I think, as does the hon. Member for Caithness and Sutherland (Mr. Maclennan), that in similar circumstances patriots would take the risk and still pass on the information. But we ought to be clear that, if this amendment is carried, we are legislating against the patriot doing what he thinks is his patriotic duty.

It may well be that the amendment is technically deficient in a number of ways. There is the point raised by my hon. Friend the Member for Birmingham, Perry Barr (Mr. Rooker) about whether it refers just to the House of Commons or to both Houses. I think that it refers to both, but I shall not be so rash as to express my view concerning whether it should refer to our House alone or to the other place as well. If this is a proper Committee stage—we still have the vestiges of a proper Committee stage, despite the guillotine—it is not enough for the Home Secretary to rest on the technicalities. If he believes, as we do, that it is right in the circumstances I have tried to describe for a public servant to be able to communicate information to a Member of Parliament, his clear duty is to promise a better amendment. Unless he does so, I hope that my right hon. and hon. Friends will vote for the amendment.

Mr. Maclennan

I listened carefully to what was clearly a very careful speech from the Home Secretary and I found it internally somewhat contradictory. He started by saying that this was a very modest amendment and ended by saying that it would not be understood by my constituents or his.

Mr. Hurd

The hon. Gentleman is taking a little advantage of my generosity. I was answering not only his amendment, which is a modest one, but the much more ambitious propositions of my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), which would encompass members of the intelligence and security forces, which of course his amendment does not.

Mr. Maclennan

I am grateful for that clarification, but it does not altogether dispose of the right hon. Gentleman's description of my amendment as one that would not be understood by our constituents. I believe that the opposite is the case: our constituents would find it utterly extraordinary if they thought that, if they came into possession of information of considerable significance, they could not, under the Bill, properly communicate it to the Member of Parliament.

The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) spoke of its being not very likely that my crofting constituents would reveal this sort of information. I have to tell him that there have been in my experience in the last 10 years two such cases. The right hon. Member for Chesham and Amersham (Sir I. Gilmour) could testify to one of them because he was the Lord Privy Seal to whom I spoke at the time about the incident. I will tell the Home Secretary about these circumstances because they show the reality of the point with which we are dealing and illustrate the fact that this is not a theoretical problem.

I have in my constituency a nuclear research establishment at which plutonium is handled on site. It is a substance of great significance in defence and it seems to me that it is quite possible that, under the provision of this Bill dealing with defence—that is, clause 2(4), which speaks of the weapons, stores or other equipment and the production and operation of such equipment—the plutonium on site and the manner of the handling of it could conceivably be covered by this Bill.

A constituent of mine who was not a Crown servant or an employee on the site came to me and said that he had very important information to give me about the manner in which the plutonium was handled. He said that he had obtained the information from someone in the know and who worked on the site and that he wanted me to do something about it because it concerned an important question. If the Home Secretary is suggesting that the constituent would have been more sensible to take that information to the village police constable rather than to me, as the Bill provides, then he is making a preposterous suggestion.

Let me give the right hon. Gentleman the other example that springs to my recollection. There was in my constituency an outstation of GCHQ, situated at Brora in Sutherland. In the early part of this decade it employed quite a large number of people in terms of the locality. Those who were employed there had always been entirely discreet about its operations. During the early 1980s, a constituent of mine who was not employed there came to me and said, "I believe that a decision will be taken to close this outstation of GCHQ. Of course that will have serious employment consequences in the community, but I would not come to you about that. I have come to you because I have been told that this is a grave error in the interests of the nation; this outstation of GCHQ is an essential part of our defensive network, and we cannot be properly looked after without it." He was not an employee. It was, perhaps, tittle-tattle. But he gave me to understand that he had been given chapter and verse.

Mr. Hattersley


Mr. Maclennan

In the terms of the clause we are discussing, he had had disclosed to him very serious information from a Government contractor. If the Minister is suggesting that that worried constituent would have been satisfied by going to the local police constable with this information, then he is quite out of touch with reality. My constituent's response would almost certainly have been to go to the Scottish Sunday Post with the information, knowing that it would be broadcast very widely. In fact, my constituent came to me and I went to see the right hon. Member for Chesham and Amersham and the whole matter was properly discussed. My constituent's anxieties were alleviated to some extent.

Mr. Rooker

Did the outstation close? We are curious to know.

Mr. Maclennan

I do not wish to abuse the privilege of the House; indeed, I want to demonstrate the total propriety of hon. Members in handling these matters.

I give these anecdotes to show the Home Secretary what he does not seem to have appreciated—that these are not purely abstract matters, and that anyone who has been a Member of Parliament for as long as me has to deal with such matters from time to time. The Home Secretary has tried to reassure us that the Bill does not cut down a Member of Parliament's remedies if he should come into contact with such information. That may be so, but the Bill seems to cut down the remedies available to members of the public. That is worrying.

Section 7(3) allows for disclosure of information only in a particular way. Both of my examples are in the categories covered by the Bill, which are of disclosures to be made to a police constable or a Crown servant. That cannot be right; it simply does not make sense. The police constable is quite likely to make the wrong use of the information. Indeed, he might fail to satisfy the member of the public who is concerned about the issue that his concern is being properly dealt with. Perhaps the Home Secretary has greater faith that his constituents would be reassured by police constables in west Oxfordshire than I have that mine would be in Caithness and Sutherland. I am bound to say that this is not the appropriate way to proceed.

6.45 pm

The right hon. Member for Sparkbrook was quite right in saying that the amendment is not primarily about protecting Members of Parliament; it is about protecting the public. It may well he, despite this unsatisfactory clause, that the public will continue to communicate with their Members of Parliament as they think fit. Parliamentary privilege may well protect them, but I am not wholly convinced by the Home Secretary that the Bill does not cut down the scope of the privilege of a Member of Parliament.

The Bill is specific about the matter. Clause 7(3) describes disclosure by any person other than a Crown servant or Government contractor as a disclosure that cannot be made with lawful authority. Perhaps I should repeat that crucial point for clarification. The disclosure is not made with lawful authority if it is made to anyone other than a Crown servant or in accordance with an official authorisation. At its face value, that means that a disclosure is not made to a Member of Parliament with lawful authority, and that acts as a barrier to members of the public, and cuts down the capacity of a Member of Parliament to do his job properly.

I heard the Home Secretary quote from the Committee of Privileges and the Duncan Sandys case about proceedings relating to the Official Secrets Act. I tried to note the words, as 1 have not read them recently. They suggest that Members of Parliament should not be made subject to proceedings under the Official Secrets Act for disclosures of this kind. I was not entirely sure whether the Home Secretary was saying that that is still the case and the Bill does not affect that position. If he was saying that, he has gone some way to reassuring me about my main concern, which led me to table the amendment, but that is only an assertion, and it is not embodied in statute. It would certainly be much more satisfactory on a matter of such importance to have statutory clarity.

I wholly understand the Home Secretary's concerns about the possible abuse of position by a Member of Parliament, but we are concerned about balancing risks in such cases. The suggestion that Members of Parliament would be more likely to take the wrong decision than Crown servants or members of the public who are denied access by the law to their Members of Parliament is not capable of being sustained. The balance must be in favour of Members of Parliament exercising their judgment responsibly and with careful deliberation in the interests of the country. I hope that the Home Secretary will reconsider this question before the Bill receives Royal Assent.

Mr. Winnick

The only Back-Bench Member who has so far defended the Government's position is the hon. Member for Lancashire, West (Mr. Hind). I shall not criticise him in any way, because he is rather a brave soul. Whether he feels that that is a quick way of getting into the Government, I would not know. However, I congratulate him on expressing what, after all, has been a minority viewpoint in the debate. We know that at 7.15 the troops will be out and the Government will get their way as usual, but in the meantime the minority view has been put by at least one hon. Member.

I heard rumours, and I did hope, that the Leader of the House would speak during the debate on a matter which involves parliamentary privilege. I do not know whether the right hon. Gentleman is listening. I can well understand his reluctance to speak, but at least he has been present. As you may know, Miss Boothroyd, when the Prime Minister was asked at Question Time today about the number of Cabinet Ministers who have been dismissed, she simply replied that none had been dismissed; they had resigned. Since the right hon. Gentleman is widely rumoured to be in the firing line, I can well understand his reluctance to speak.

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

Order. The hon. Gentleman should confine himself to the amendment.

Mr. Winnick

In the last resort, it is the right of a private citizen or an official to go to his Member of Parliament. The Home Secretary's argument all along has, in effect, been that, if a person has reason to feel that an abuse has taken place, there are procedures available to him. Clause 7 refers to disclosures from a Crown servant. We know that the Home Secretary has put a great deal of emphasis on the fact that, if someone in the security services feels aggrieved, he can go to the person widely referred to as the ombudsman in the Security Service.

Mr. Hurd

The staff counsellor.

Mr. Winnick

Yes. But what worries me, as I am sure it worries a number of other hon. Members, is that, if an official or a private person feels that going to a Crown servant, whether that be the village constable or a much more senior person in officialdom, will not resolve the matter, or, having used those procedures, he does not feel that the matter has been put right, there is no other course left. Surely, at the end of the day, such a person has the right of any other British citizen to go to his or her Member of Parliament.

The amendment may be technically defective in a number of ways, but that is not relevant. If the principle of an amendment is accepted, the Home Secretary should say so and table another amendment on Report. It is worrying that once again the Home Secretary has completely closed that door.

I remain convinced that there may be cases—I am sure that they would not be frequent—where at the end of the day, as in the Duncan Sandys or Winston Churchill cases, a Member of Parliament should be seen. Hon. Members know from their postbags that people have more mundane problems and difficulties than the sort that we are debating. Often they have tried to resolve them through the usual channels, but at the end of the day they go to their Member of Parliament. They do not say to themselves that their Member of Parliament has nothing to do with housing or health problems. They believe that their Member of Parliament is there to look after their interests. About 70 or 80 per cent. of our constituency postbags relates to matters which are no concern to us, but obviously we take up those matters because we are expected to do so. The same applies in the event of abuse.

Mr. Hind

Does the hon. Gentleman agree that his constituent can still come to him and make a disclosure, providing that he has not been notified, and the hon. Gentleman can take up the matter? Providing that he does so in such a way that he does no harm to the national interest, he protects the fact that the disclosure has been made to him and he seeks out a remedy. On top of that, the has the privilege of the House should he feel that he needs to take the matter further. Should the matter then go to court, his consitituent can argue the defence in the courts.

Mr. Winnick

But the person who has made the complaint is not protected. A Member of Parliament would do his duty. Regardless of what is in the Bill, if I received a complaint I would not rush to the Home Secretary if I did not consider that to be appropriate. Obviously, if it were appropriate, I would go to the Government, but otherwise I would pursue the matter on the Floor of the House. I do not wish to engage in any form of abuse, but after consulting senior colleagues I would do what I considered to be my duty. I trust that all hon. Members would do precisely that. The person who makes the complaint should not be in the position in which the Bill places him. The principle of the amendment should be accepted.

Let me conclude with a case that I have brought up before which concerns an official, not a private citizen—that of Cathy Massiter. It arose before there was a staff counsellor. The staff counsellor was appointed following what happened over Cathy Massiter. Whatever else one may say about her disclosures, they have undoubtedly led to some changes for the security services.

If Miss Massiter had gone to a staff counsellor and had not received satisfaction, as presumably would have happened, and she had then gone to someone higher and at the end of the day the abuse about which she was complaining had continued, she may have gone to her Member of Parliament. Such a course would have been perfectly right. However, the Bill in no way protects a complainant such as Cathy Massiter.

The Attorney-General

indicated assent.

Mr. Winnick

It is unfortunate that once again the Home Secretary is not willing to accept the broad principle of the amendment. I do not accept that Members of Parliament abuse privilege. I have been here for less time than many other hon. Members, but I can recall few, if any, cases of abuse. We all know that the House has a way of dealing with abuse by taking such matters to the Committee of Privileges, as happens if a Member seeks to use the House for publicity purposes.

For all those reasons, the principle of the amendment should be accepted, although I am not at all surprised that the Home Secretary has again refused to accept it.

Mr. Dalyell

I thank the Attorney-General for coming to answer the Scottish point.

Mr. Hurd

Let me briefly answer some of the later points. I am not clear why the hon. Member for Caithness and Sutherland (Mr. Maclennan) thinks that either of his constituents might be prosecuted under the Bill. He will judge that better, but if he is wrong, the problem that he described will not arise. The Bill does not reduce his or her constituents' rights in this matter.

7 pm

My hon. Friend the Member for Hendon, North (Mr. Gorst) pressed me on a point that I did not cover when I spoke earlier. I can say what I think he wants me to say, because it is true. There is no change in the press reporting of our proceedings. It will still be governed by qualified privilege—a concept that has been thrashed out over the years. That means, of course, that if an hon. Member disclosed in the course of proceedings in the House a piece of information passed to him by a member of the security or intelligence services, it would be out—not just in the House, but on the news stands and in the television studios.

I tried to follow the point of my hon. Friend the Member for Hendon, North about the receiving of anonymous information. He is right to say that there could be a problem, but I do not believe that it is one that would be affected by the Bill.

The suggestions by the hon. Member for Birmingham, Perry Barr (Mr. Rooker) are matters for the House. I am not sure what the Clerk or the Chairman of the Select Committee would do when he received the piece of paper which the hon. Gentleman postulated. The House would need to think long and deep before going down that path.

The point of the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) appeared to lack his usual logic. It is true that in some cases an hon. Member might not disclose what he had received, but that is not an argument in favour of an amendment which would enable every constituent to communicate, and therefore every hon. Member to disclose, any secrets which came into his hands. That would not be logical. The hon. Member for Caithness and Sutherland is right in saying that it is a matter of balance.

We have had a leisurely debate, with between 20 and 25 right hon. and hon. Members present for most of the time, with the usual—but rather reduced—gifted group of convinced critics of the Bill on both sides of the House. Those right hon. and hon. Members have not attracted the support which they obviously hoped for—[Interruption.] They have not persuaded me. It is not necessary to persuade a Minister, but a Minister can actually be made to do something. That means, however, attracting wider support than has been the case on this occasion. That does happen, but, of course, it has not happened on this occasion. That may be because the amendments tabled—especially this one—lack the sort of balance which I believe is better expressed in the Bill.

Mr. Norman Buchan (Paisley, South)

How many hon. Members who voted with the right hon. Gentleman throughout the proceedings on this Bill does he really think believe in this Bill? There is no answer.

Mr. Gorst

Would my right hon. Friend reply to the point about whether there is a change in the position of European Members of Parliament?

Mr. Hurd

There is no change in the Bill with regard to whatever privileges there are for Members of the European Parliament. In reply to a question from the hon. Member for Perry Barr last night, I promised to look into the subject of the European Parliament, official secrets and the clause which we discussed last night. I shall need a little time to investigate that point further.

Mr. Maclennan

I thank the Home Secretary for his remarks, which were, of course, unpersuasive. I shall simply comment on what the right hon. Gentleman said about the interest of the House in this matter.

The right hon. Gentleman signalled at an early stage in our proceedings that the Bill would not be amended by the Committee, except in one respect by a Government amendment. He indicated that he had no intention of accepting any amendments tabled by right hon. or hon. Members on either side of the Committee, however eloquent or forceful their arguments were. It is not surprising, therefore, that many right hon. and hon. Members regard the proceedings through which he has been putting us as something of a charade. The reality is that we are not shaping the legislation in any meaningful sense. The Bill will leave the House as it entered it.

The right hon. Gentleman has participated in a procedure which, I believe, has brought the legislative process into disrepute. None the less, I regard this as an important matter, and I hope that right hon. and hon. Members in all parts of the House, while recognising the technical deficiencies of the drafting, will support the principle.

Question put, That the amendment be made:—

The Committee divided: Ayes 112, Noes 274.

Division No. 98] [7.4 pm
Aitken, Jonathan Hoyle, Doug
Armstrong, Hilary Hughes, John (Coventry NE)
Ashdown, Rt Hon Paddy Illsley, Eric
Ashton, Joe Janner, Greville
Banks, Tony (Newham NW) Jones, leuan (Ynys Môn)
Barnes, Harry (Derbyshire NE) Kaufman, Rt Hon Gerald
Barron, Kevin Kennedy, Charles
Battle, John Leighton, Ron
Beckett, Margaret Lestor, Joan (Eccles)
Beith, A. J. Livsey, Richard
Benn, Rt Hon Tony Loyden, Eddie
Bermingham, Gerald McAvoy, Thomas
Boyes, Roland McCartney, Ian
Bray, Dr Jeremy McFall, John
Brown, Gordon (D'mline E) McKay, Allen (Barnsley West)
Brown, Ron (Edinburgh Leith) Maclennan, Robert
Buchan, Norman McWilliam, John
Buckley, George J. Madden, Max
Campbell, Menzies (Fife NE) Marek, Dr John
Campbell, Ron (Blyth Valley) Martlew, Eric
Campbell-Savours, D. N. Maxton, John
Cartwright, John Meacher, Michael
Clarke, Tom (Monklands W) Meale, Alan
Clwyd, Mrs Ann Michael, Alun
Cohen, Harry Michie, Bill (Sheffield Heeley)
Cook, Robin (Livingston) Michie, Mrs Ray (Arg'l & Bute)
Corbett, Robin Morgan, Rhodri
Corbyn, Jeremy Murphy, Paul
Crowther, Stan Nellist, Dave
Cummings, John Owen, Rt Hon Dr David
Dalyell, Tam Pike, Peter L.
Darling, Alistair Powell, Ray (Ogmore)
Davies, Rt Hon Denzil (Llanelli) Prescott, John
Davis, Terry (B'ham Hodge H'l) Radice, Giles
Dewar, Donald Randall, Stuart
Dixon, Don Richardson, Jo
Duffy, A. E. P. Robinson, Geoffrey
Dunnachie, Jimmy Rooker, Jeff
Dunwoody, Hon Mrs Gwyneth Ruddock, Joan
Fatchett, Derek Sedgemore, Brian
Field, Frank (Birkenhead) Shepherd, Richard (Aldridge)
Flynn, Paul Short, Clare
Foot, Rt Hon Michael Skinner, Dennis
Foster, Derek Smith, Andrew (Oxford E)
George, Bruce Smith, C. (Isl'ton & F'bury)
Godman, Dr Norman A. Snape, Peter
Golding, Mrs Llin Soley, Clive
Gordon, Mildred Spearing, Nigel
Hattersley, Rt Hon Roy Steel, Rt Hon David
Haynes, Frank Taylor, Mrs Ann (Dewsbury)
Heffer, Eric S. Vaz, Keith
Henderson, Doug Wall, Pat
Hinchliffe, David Walley, Joan
Hood, Jimmy Welsh, Andrew (Angus E)
Howells, Geraint Winnick, David
Wise, Mrs Audrey Tellers for the Ayes:
Wray, Jimmy Mr. Frank Cook and
Mr. Robert N. Wareing.
Adley, Robert Forth, Eric
Alexander, Richard Fowler, Rt Hon Norman
Amess, David Fox, Sir Marcus
Amos, Alan Franks, Cecil
Arbuthnot, James Freeman, Roger
Arnold, Jacques (Gravesham) French, Douglas
Arnold, Tom (Hazel Grove) Gale, Roger
Aspinwall, Jack Gill, Christopher
Atkinson, David Glyn, Dr Alan
Baker, Nicholas (Dorset N) Goodhart, Sir Philip
Baldry, Tony Goodlad, Alastair
Banks, Robert (Harrogate) Goodson-Wickes, Dr Charles
Batiste, Spencer Gorman, Mrs Teresa
Beggs, Roy Gorst, John
Bellingham, Henry Gower, Sir Raymond
Bendall, Vivian Grant, Sir Anthony (CambsSW)
Bennett, Nicholas (Pembroke) Greenway, Harry (Ealing N)
Benyon, W. Gregory, Conal
Bevan, David Gilroy Griffiths, Sir Eldon (Bury St E')
Biffen, Rt Hon John Griffiths, Peter (Portsmouth N)
Blackburn, Dr John G. Grist, Ian
Blaker, Rt Hon Sir Peter Ground, Patrick
Bonsor, Sir Nicholas Gummer, Rt Hon John Selwyn
Boscawen, Hon Robert Hamilton, Hon Archie (Epsom)
Boswell, Tim Hamilton, Neil (Tatton)
Bowden, A (Brighton K'pto'n) Hampson, Dr Keith
Bowden, Gerald (Dulwich) Hanley, Jeremy
Bowis, John Hargreaves, A. (B'ham H'll Gr')
Boyson, Rt Hon Dr Sir Rhodes Hargreaves, Ken (Hyndburn)
Brandon-Bravo, Martin Harris, David
Brazier, Julian Haselhurst, Alan
Bright, Graham Hayhoe, Rt Hon Sir Barney
Brown, Michael (Brigg & Cl't's) Hayward, Robert
Browne, John (Winchester) Heath, Rt Hon Edward
Bruce, Ian (Dorset South) Heathcoat-Amory, David
Buck, Sir Antony Heseltine, Rt Hon Michael
Budgen, Nicholas Hicks, Mrs Maureen (Wolv' NE)
Burns, Simon Hicks, Robert (Cornwall SE)
Burt, Alistair Higgins, Rt Hon Terence L.
Butcher, John Hind, Kenneth
Butler, Chris Hogg, Hon Douglas (Gr'th'm)
Butterfill, John Holt, Richard
Carlisle, John, (Luton N) Howard, Michael
Carrington, Matthew Howarth, Alan (Strat'd-on-A)
Carttiss, Michael Howarth, G. (Cannock & B'wd)
Cash, William Howell, Ralph (North Norfolk)
Chalker, Rt Hon Mrs Lynda Hughes, Robert G. (Harrow W)
Chope, Christopher Hunt, David (Wirral W)
Clarke, Rt Hon K. (Rushcliffe) Hunt, John (Ravensbourne)
Colvin, Michael Hunter, Andrew
Coombs, Anthony (Wyre F'rest) Hurd, Rt Hon Douglas
Coombs, Simon (Swindon) Irvine, Michael
Cope, Rt Hon John Jack, Michael
Couchman, James Janman, Tim
Cran, James Jessel, Toby
Currie, Mrs Edwina Johnson Smith, Sir Geoffrey
Davies, Q. (Stamf'd & Spald'g) Jones, Robert B (Herts W)
Davis, David (Boothferry) Key, Robert
Day, Stephen King, Roger (B'ham N'thfield)
Dickens, Geoffrey King, Rt Hon Tom (Bridgwater)
Dicks, Terry Kirkhope, Timothy
Dorrell, Stephen Knapman, Roger
Dykes, Hugh Knight, Greg (Derby North)
Evans, David (Welwyn Hatf'd) Knight, Dame Jill (Edgbaston)
Evennett, David Knox, David
Fairbairn, Sir Nicholas Lang, Ian
Fallon, Michael Latham, Michael
Favell, Tony Lawrence, Ivan
Fenner, Dame Peggy Leigh, Edward (Gainsbor'gh)
Field, Barry (Isle of Wight) Lennox-Boyd, Hon Mark
Finsberg, Sir Geoffrey Lester, Jim (Broxtowe)
Fishburn, John Dudley Lightbown, David
Fookes, Dame Janet l.illey, Peter
Forman, Nigel Lloyd, Sir Ian (Havant)
Forsyth, Michael (Stirling) Lloyd, Peter (Fareham)
Lord, Michael Shaw, Sir Michael (Scarb')
Luce, Rt Hon Richard Shelton, Sir William
McCrindle, Robert Shephard, Mrs G. (Norfolk SW)
Macfarlane, Sir Neil Shersby, Michael
MacKay, Andrew (E Berkshire) Sims, Roger
Maclean, David Skeet, Sir Trevor
McLoughlin, Patrick Smith, Tim (Beaconsfield)
McNair-Wilson, Sir Michael Smyth, Rev Martin (Belfast S)
McNair-Wilson, P. (New Forest) Soames, Hon Nicholas
Madel, David Speller, Tony
Major, Rt Hon John Spicer, Sir Jim (Dorset W)
Malins, Humfrey Spicer, Michael (S Worcs)
Maples, John Squire, Robin
Marland, Paul Stanbrook, Ivor
Marlow, Tony Stanley, Rt Hon Sir John
Martin, David (Portsmouth S) Steen, Anthony
Maude, Hon Francis Stevens, Lewis
Mawhinney, Dr Brian Stewart, Andy (Sherwood)
Maxwell-Hyslop, Robin Stokes, Sir John
Mayhew, Rt Hon Sir Patrick Stradling Thomas, Sir John
Meyer, Sir Anthony Sumberg, David
Miller, Sir Hal Summerson, Hugo
Molyneaux, Rt Hon James Tapsell, Sir Peter
Monro, Sir Hector Taylor, Ian (Esher)
Moore, Rt Hon John Taylor, John M (Solihull)
Moss, Malcolm Taylor, Teddy (S'end E)
Moynihan, Hon Colin Tebbit, Rt Hon Norman
Mudd, David Temple-Morris, Peter
Nelson, Anthony Thompson, D. (Calder Valley)
Neubert, Michael Thorne, Neil
Newton, Rt Hon Tony Thurnham, Peter
Nicholls, Patrick Townend, John (Bridlington)
Nicholson, David (Taunton) Tracey, Richard
Nicholson, Emma (Devon West) Tredinnick, David
Norris, Steve Trippier, David
Onslow, Rt Hon Cranley Trotter, Neville
Oppenheim, Phillip Twinn, Dr Ian
Page, Richard Vaughan, Sir Gerard
Paice, James Viggers, Peter
Patnick, Irvine Waddington, Rt Hon David
Patten, John (Oxford W) Wakeham, Rt Hon John
Pattie, Rt Hon Sir Geoffrey Walden, George
Pawsey, James Walker, Bill (T'side North)
Peacock, Mrs Elizabeth Waller, Gary
Porter, Barry (Wirral S) Walters, Sir Dennis
Porter, David (Waveney) Wardle, Charles (Bexhill)
Portillo, Michael Watts, John
Powell, William (Corby) Wells, Bowen
Price, Sir David Wheeler, John
Raffan, Keith Whitney, Ray
Raison, Rt Hon Timothy Widdecombe, Ann
Rathbone, Tim Wiggin, Jerry
Redwood, John Wilkinson, John
Riddick, Graham Wilshire, David
Ridsdale, Sir Julian Winterton, Mrs Ann
Rost, Peter Winterton, Nicholas
Rowe, Andrew Wood, Timothy
Rumbold, Mrs Angela Woodcock, Mike
Ryder, Richard Yeo, Tim
Sackville, Hon Tom Young, Sir George (Acton)
Sayeed, Jonathan
Scott, Nicholas Tellers for the Noes:
Shaw, David (Dover) Mr. Tony Durant and
Shaw, Sir Giles (Pudsey) Mr. Kenneth Carlisle.

Question accordingly negatived.

It being after a quarter past Seven o'clock, THE CHAIRMAN proceeded, pursuant to the order [13 February] and the resolution [15 February] , to put forthwith the Question necessary for the disposal of the business to be concluded at that hour.

Clauses 7 and 4 ordered to stand part of the Bill.

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