INFORMATION ENTRUSTED IN CONFIDENCE TO OTHER STATES OR INTERNATIONAL ORGANISATIONS

HC Deb 16 February 1989 vol 147 cc585-603

Mr. Maclennan

I beg to move amendment No. 75, in page 6, line 4, leave out 'defence or international relations' and insert 'or defence'.in page 6, line 4, leave out 'defence or international relations' and insert 'or defence'.

The Chairman of Ways and Means (Mr. Harold Walker)

With this it will be convenient to consider amendment No. 76, in page 6, line 39, leave out 'defence and international relations' and insert 'and defence'.

Mr. Maclennan

The context of the amendments is the extraordinary provision of clause 6 whose purpose seems to be to make it a criminal offence to disclose British information relating to security or intelligence, defence or international relations, if that information has been leaked in another country; for that is what I think is meant by the phrase in the Bill disclosed … without the authority of that State". It is highly anomalous because the existence of the offence in British law does not result from a criminal act of leaking having occurred in another country. The disclosure may not have been criminal in that other country where it took place.

The effect of the clause is that a British citizen could be imprisoned in Britain for up to two years for repeating information that has been leaked abroad without infringing the local law in, for example, Brussels or Strasbourg. On the other hand, because the law is different in the United States, Canada or Australia, where there is a legal right to obtain information through a Freedom of Information Act so that disclosure is achieved not through leaking but by applying for the information, the British citizen is at liberty to repeat it.

10.15 pm

It is astonishing that a criminal offence in Britain should depend upon the state of the law in the country in which the information becomes available. It is bizarre that it should be a criminal offence to publish information leaked in Brussels but not if it has been obtained under the Freedom of Information Act in the United States. That is the highly anomalous effect of clause 6.

Whatever may be the virtues or follies of that, it is unacceptable that the categories of information leaked which lead to the imposition of a penalty of up to two years' imprisonment should yet again include that extremely vague reference to international relations.

Under clause 6(2) it is an offence to repeat information which has been supplied by Britain to another Government or an international body which has been improperly disclosed by someone who does not commit an offence under the Bill in so doing.

My purpose is to reduce the impact of that by deleting the words "international relations". The new offence applies to information specified as I have described, but the reference to international relations amounts to an extraordinary extension of the law because it applies to the repetition of information which may have been widely available abroad. However, I do not want to run the risk of repeating the arguments that we have just had on prior publication.

Whether that provision is justified is arguable. The Government have previously argued that it is necessary primarily to protect increasing international co-operation in recent years on defence and international problems such as terrorism. But by including international relations the Bill has gone substantially beyond what the Government earlier sought to cover. It covers disclosures on any subject if they have been discussed by the Government, Government Departments or international bodies or their organs. The purpose of my amendment is reduce the ambit of this sweeping clause, which is anomalous and indefensible.

Mr. Terence L. Higgins (Worthing)

I intervene briefly. It is always difficult under a guillotine motion to know precisely where to raise some points, but this seems to be an appropriate point to raise a matter that is giving me some cause for concern.

It has been an underlying theme of my right hon. Friend the Home Secretary's arguments in support of the Bill that it is in many ways a liberalising measure in as much as much information that was previously caught by the old legislation will no longer be caught, even, it is sometimes stressed, the United Kingdom Budget.

There may be those who have some doubts about it, because, if a Budget leak takes place, it is possible that the Revenue could suffer substantial loss as a result, for example, of the change in the rate of excise duty on petrol, wine or cigarettes being known in advance. I accept, however, that it is the Home Secretary's general intention to widen the exemptions from the effect of secrets legislation as much as possible.

Having said that, I then begin to wonder whether the extent of this liberalisation is as great as we suppose. Let us suppose that there is some information within the economic management sector that is given in confidence to the OECD, which I presume must be an international organisation within the definition in the Bill. If that is then leaked in some way, or subsequently disclosed unlawfully, that would appear to give rise to the full impact of the criminal law falling upon the individual who publishes that information. If it was obtained directly and published, it would not be subject to criminal law, but if it was given to some other international body or other state and subsequently published, it would still be caught as it is under existing legislation. That appears to be rather strange and curious and I hope, therefore, that the Minister in his reply will be able to put my mind at rest.

The clause widens the matter considerably. I shall cite another matter which concerns me. A journalist from this country, who covers events in Europe, could obtain information from some international body—not necessarily the OECD, but perhaps the European Commission—and in good faith believe that that is something which is generally known in Strasbourg or Brussels and is, therefore, something that he could report back to a newspaper in this country for publication. It may turn out, however, to be something that was authorised either by the state or by the organisation concerned. It would then seem that the individual or the newspaper who had published that information in this country would be subject under criminal law to the sanctions imposed in the Bill. I hope that my hon. Friend can clarify that point.

The final point that I would like to make at this stage—perhaps some others will emerge during the discussions, as they have previously—is that we are taking stringent measures, in many ways of an extraordinary kind, to protect the information which we give to international organisations or other states. I speak not only of whether that information should be released, but of the argument that the mere disclosure may be harmful to our international relations, although the information itself turns out not to be so.

I ask the Minister how many other countries have such reciprocal legislation? Is it the case, for example, that the United States is equally concerned that, perhaps, if it gave us information in confidence, which was then subsequently published, that would damage its international relations? Does it have such legislation? If it does, we can take the matter from there. If it does not, one is bound to ask why we have to be much more sensitive than the United States on such issues. I would be grateful if the Minister could at least tell us the position of the United States and the main European Common Market countries in that regard. I hope that he can enlighten us on those points because the clause gives considerable cause for concern.

Mr. Dalyell

I want to ask one question. Most of the offences under this clause would presumably be committed by people in the Civil Service. If that is so, is there any truth in the suggestion that the Government are thinking of using the Civil Service discipline regulations to have some authority over civil servants in this respect with a view to cutting or curtailing pensions? Is there a threat to remove the pensions rights of a Civil Service leaker? I would of course like a categoric denial.

Mr. John Patten

I can deal with that now. Of course, the hon. Gentleman raises a very important point which is of concern to civil servants and to the Committee. Pension forfeiture provisions cannot be used as a disciplinary measure. They can apply only to people who are convicted of a criminal offence. The hon. Gentleman asked me to give a binding undertaking or a clear statement of the Government's position. We have no proposals at the moment to bring forward legislation to alter the existing public service pension forfeiture arrangements. I hope that the hon. Member for Linlithgow (Mr. Dalyell) is satisfied with that undertaking.

Mr. Dalyell

That is a completely reasonable reply to my question.

Mr. Greg Knight

On a point of order, Mr. Walker. You are aware that on Monday there was much comment in the House from Opposition Members about the fact that the Government were being unreasonable in the allocation of time for discussing the clauses in the Bill. However, Conservative Members have noticed that the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) has not been present in the Chamber since 7.15 this evening. Have we been allocated too much time and—

The Chairman of Ways and Means

Order. Let us not waste any more time.

Mr. Buchan

It might be out of order for me to mention the fact that the absence of any Conservative Members who support the Bill has been the most notable feature of our proceedings this week. The hon. Member for Derby, North (Mr. Knight) must be the first Conservative Member to support the Bill. The problem facing the Government is not the absence of Opposition Members, but the fact that they are desperately trying to find Conservative Members to support the Bill.

I asked the Home Secretary only a few moments ago how many Conservative Members who voted for the Bill actually supported it. He did not reply. The answer was probably none. Anyone who has listened to five or 10 minutes of our debates on the Bill must have been convinced that it would be an utter tragedy for this country if it were passed. The Bill and the proceeding have been a travesty. For the hon. Member for Derby, North to appear suddenly with this kind of nonsense—

Mr. Greg Knight

I have been here all week.

Mr. Buchan

The hon. Gentleman certainly has not been here all week. I have been here all week apart from the past. three hours when I was discussing the city of Glasgow in 1990. If I had not been doing that, I would have been here discussing the position in Britain in 1989.

I am very concerned about this clause because we are not being given an opportunity, probably for the best of reasons I suspect, to debate amendment No. 60 which would leave out "be damaging" and change the wording to "would cause serious injury to the interests of the nation." I understand why we are not going to discuss amendment No 60. We have discussed that wording before and presumably it would be repetitive to discuss it in this part of the Bill. However, in many ways I would be less worried if that caveat were inserted. As it is, we are left with the situation where "international relations" is left unqualified and without significance and what is damaging to international relations becomes a crime.

Some of the most notable services to humanity have been performed by investigative journalists who have leaked information. For example, it might have reflected more honour on this country if, before the invasion of Suez, we had known a bit more about the international relationships then prevailing between Britain and France and the events in Egypt and Israel. This clause puts a blanket prevention or a cloud of anxiety on the good, intelligent and honest journalist whose job it is to find out what the hell is going on in "international relations".

Mr. Higgins

I note that the part of clause 6(4) that the amendment seeks to leave out refers to "international relations", which term is said to have the same meaning as in section 1, 2 and 3 above", which the hon. Gentleman mentioned a moment ago. That is very strange: we would have expected to find the definition of international relations not by reference to earlier clauses but in the definitions that appear in clause 13—which, of course, we shall not be able to discuss. Is this not an extraordinary piece of drafting? Perhaps the Minister will pick it up in his reply.

10.30 pm

Mr. Buchan

I am sorry. I have been so absorbed in the lack of caveat in the "damage" provision that I did not notice that. It is indeed very strange—and dangerous too—that "international relations" should be inserted in such a form when clauses I and 2 deal with the "formation" of the Bill: security and intelligence, and then defence. Is this intended? It seems extraordinary that the term should have been left raw and unqualified if, in fact, it means "defence and security". I do not think that the Minister himself knows the answer, but it would be useful to hear an answer.

If "international relations" means "defence and security", we are in a different ball game, and it is time that we were aware of it. I would not mind giving way now so that the Minister can tell us whether this was intended. Are we dealing with defence and security, or what? Until now we have assumed that we were dealing with the simple, straightforward issue of international relations.

Mr. Maclennan

Perhaps I can help the hon. Gentleman. We are considering two amendments. The first reference to "international relations" is in clause 6(1)(a)(i), which deals with security or intelligence, defence or international relations and to which amendment No. 75 relates. The second appears in subsection (4). The hon. Gentleman is quite right to have raised those questions.

Mr. Buchan

That forces us back to the terrible drafting of the Bill. Let us look at the word "or", for example. Subsection (4) refers to "security or intelligence" and "defence", but subsection 1(a)(i)—it sounds like a football pool, does it not?—refers to security or intelligence, defence or international relations", which has an entirely different significance. That, surely, means that "international relations" does not refer to intelligence, security or defence. We come back to the grammar of the Bill. Quite apart from its dangers, it has not even been drafted well.

I will sit down if the Minister can give me an answer. Does "international relations" mean "intelligence, defence and security", or does it mean what we normally mean by it—relationships between countries?

Mr. Maclennan

rose—

Mr. Buchan

If Conservative Members cannot solve their problems, we shall have to do it for them. It is their bloody Bill.

Mr. Maclennan

I hesitate to do the Minister's work for him—

Mr. Buchan

It looks as if the hon. Gentleman will have to.

Mr. Maclennan

May I draw the hon. Gentleman's attention to the definition in clause 3(5)? That describes international relations as including any matter relating to a State other than the United Kingdom…which is capable of affecting the relations of the United Kingdom with another State". That is an all-embracing definition.

Mr. Buchan

Absolutely. Is the Minister going to try to be helpful, or not? I pause for a reply.

Mr. John Patten

I thought that the hon. Gentleman was taking us through bits of the Bill that he had read and other bits that he had not. The hon. Member for Caithness and Sutherland (Mr. Maclennan) is quite right: international relations are described on the face of the Bill, in lines 1 to 6 of clause 3(5). Clause 6(4) refers to the damage tests that are attracted to the offence, and the offence is described in clause 6(2).

Mr. Buchan

But, with respect, it does not say that. Clause 6(4) says: For the purposes of this section"— that is, the whole of clause 6— 'security or intelligence', 'defence' and 'international relations' have the same meaning as in section 1, 2 and 3 above". The Minister is now pushing us on to sections 1, 2 and 3, which refer to security, defence and international relations, which is defined as being between international organisations or between one or more States and one or more such organisations and includes any matter relating to a state". In other words, the question of security or intelligence has nothing to do, in that case, with international relations. We are back to the simplistic definition after all.

Mr. Patten

The hon. Gentleman seems to have overlooked clause 6(1)(a): any information, document or other article which—

1. (i) relates to security or intelligence, defence or international relations".

Mr. Buchan

On the contrary, I was making a specific point about clause 6(1)(a)(i) when I pointed out that the "or" could not by definition—if it meant anything at all—subsume international relations with security intelligence or defence. We now know that we are not dealing with security or defence—or at least I think that that is what the Minister is saying. We are dealing with it only as defined in clause 3(5): the relations between Stares, between international organisations or between one or more States". We are not, therefore, dealing with the matters with which the Official Secrets Bill purports to deal—that is, defence and security leaks. We are dealing with the investigation, commentary and publication of attitudes, relationships, manners and matters happening between states.

I gave an example—

Mr. Patten

Clause 6 applies, where:

1. "(a) any information, document or other article…
   1. (i) relates to security or intelligence, defence or international relations".

If the hon. Gentleman reads through clause 6, he will see that it all flows.

Mr. Buchan

For the purpose of the debate, we are proceeding on the assumption the Minister is making that "international relations" means the definition in clause 3(5). That is right. I am merely pointing out the difficulties we then have in clause 6(4).

We are saying, therefore, that we are not dealing with the relationship of international relations, security aspects, defence and intelligence, but are giving the full meaning of the word to "or" and, therefore, isolating "international relations". [HON. MEMBERS: "No."] I cannot conduct any more English lessons. We are dealing with international relations as such and the disclosure without lawful authority of the information, document or article by the person".

The problem that the Minister and the Committee face is that the purpose of decent, good journalism is precisely to expose secret negotiations where it can. If there is any problem that has bedevilled relations throughout the 20th century, it has been secret diplomacy. I gave one obvious example, which acted as the death knell for the future of the British empire. The Suez affair was a climacteric which could not have occurred if the people of this country had known in advance the deal that had been made between Britain, France and Israel. If any journalist had discovered that, far from being punished, he should have been made a national hero because he would have prevented us from committing one of our worst crimes and disasters. Such actions are prevented by clause 6.

It is the function of the good journalist to ferret out secrecy in diplomacy. One has only to think of the apparatus of the Common Market. I see that the hon. Member for Southend, East (Mr. Taylor) is present; he pricks up his ears as soon as someone mentions the Common Market. It is perfectly proper that secret agreements within the Common Market purporting to be on behalf of the people of this country are ferreted out and published. Clause 6 is a further attack on the freedom of the word in this country. It has moved into a wider area than the area we have been discussing until now and it does not even have the caveat of the more serious definition of harm, which we attempted to put in. We wanted to replace the word "damage" with "serious harm" or "serious damage". For that reason, I support amendment No. 75.

Mr. Richard Shepherd

In the spirit of inquiry, I should like to ask a hypothetical question to find out how the clause might apply. As my hon. Friend the Minister rightly said, the clause states: This section applies where…any information, document or other article which relates to security or intelligence, defence or international relations comes into a person's possession.

Mr. John Patten

So my hon. Friend agrees that the interpretation that I gave the hon. Member for Paisley, South (Mr. Buchan) was correct?

Mr. Shepherd

I do not propose to play games with the Minister at this late hour—and under sentence of the guillotine at that.

Suppose that the Foreign Office is in communication with the Foreign Ministry in Madrid, and that it is its purpose to dispose of a peripheral problem—Gibraltar. In confidential talks that have not been the subject of discussion in the House, the Foreign Office makes it known to the Spanish Foreign Ministry that its objective is to accommodate Spanish interests in Gibraltar.

Through the indiscretion of a Spanish Foreign Ministry official, the information comes into the possession of the major newspaper of Spain. That newspaper wants to play down the embarrassment to Britain but nevertheless wants to send a signal to the Spanish people that, despite all the huffing and puffing of the British Foreign Office, the matter is settled: Britain is to dispose of its interests in Gibraltar and its support for the Gibraltese people, in whatever way is easiest. That is Britain's policy objective.

As I understand the clause, it would make it an offence to publish that information here, because it would trigger the damage described in clause 3(2), about which there is some concern in the Committee. I believe that yesterday my right hon. Friend the Home Secretary undertook to reconsider clause 3(3), which says that an offence has been committed by virtue of the fact that the information is confidential and the damage proven.

If the words "international relations" remain, the clause may inhibit the ability of the British public to make a real contribution, through the House, to the formulation of British foreign policy—something for which the House is responsible and for which it is held responsible by the electorate. The Bill as drafted could diminish seriously our ability freely to discuss information which, of its nature, becomes available from abroad.

Mr. Maclennan

Has the hon. Gentleman noticed the anomaly that the clause encapsulates? If the information that he describes were passed directly to the Pentagon, having been obtained as a result of the exercise by a United States citizen of his rights under the Freedom of Information Act and published in the United States, as opposed to Spain, it would not be a criminal offence under the Bill to repeat it in this country. In this case the nature of the crime would be dictated not by our domestic requirements but by the domestic law of Spain or the United States.

Mr. Shepherd

It is altogether a curious clause, and that is why it is worth exploring. I know that the United States has something called "sovereign Government immunity", which enables the United States Government to remove from the public record information that is sensitive to foreign Governments. I understand that, and I would not criticise it.

Let me push the Gibraltese scenario a little further. We know that the position that I have outlined is not the Government's declared position. We know, too, that Britain has a number of peripheral problems. Belize, the Falklands, Gibraltar and Hong Kong are the four well known ones. The declared aim of Britain was the declared aim of Britain, but somehow, at the end of the day, we seem to accommodate something different from that which Foreign Office Ministers have told the House of Commons.

It was not my intention to go all the way down that road. I wanted to say merely that if this provision is allowed to stand as it is, it will be very difficult for a British paper to publish information that has become available. I am not sure why that new offence should be created in the Bill. Therefore, I look forward to clarification from my hon. Friend. Why do the Government want blanket control over information whose publication is not at present an offence?

10.45 pm

Mr. Stuart Randall (Kingston upon Hull, West)

Clause 6 deals with the disclosure of information that has been entrusted in confidence to other states or international organisations. The amendment with which we are dealing concerns subsection (1), which provides that where any information relating to security, intelligence, defence or international relations, which has been given in confidence by the United Kingdom to another state, has come into a person's possession without the authority of that state, that person is guilty of an offence if he makes a damaging disclosure.

We are lacking a real Committee stage. The impression I have from other hon. Members is that they agree with me that we have been unable to grasp the dimension of the matters with which this clause deals. It seems to expand the scope of the Bill very considerably. We have had no notes on the clauses, and I cannot understand why the Government feel it necessary to include any information that embraces international relations. I imagine that few hon. Members can envisage the real nature of any information that is referred to here relating to international relations. I imagine that quite a lot of it is trivial stuff—specifications, drafts, and so on. Nevertheless, I am disturbed, and quite alarmed, that the Bill should make provision for this catch-all facility.

On many occasions concern has been expressed in the House of Commons about the old Act having this catch-all effect. We seem to be going down that path—certainly so far as all the information associated with international relations is concerned. I thought that we were supposed to be liberalising the 1911 Act. Instead, we seem to be going in the other direction.

I should like to understand the Government's motive behind clause 6(1)(a)(i), which refers to any information, document or other article which—relates to security or intelligence, defence or international relations". Let me put a few questions to the Minister so that I may understand why this provision has been included. First, what consideration is given to this question of the prevention of damaging disclosure by other Governments? Is it a two-way process? Do we have a deal within the EEC to ensure that there is coherence, if that is required?

Secondly, have there been disclosures which have prompted the Government to introduce the provision on international relations? I do not want the detail; I just want to know whether there is a serious problem. Are there difficulties with other countries that prevent us protecting our interests? I should like the Minister to answer that.

Mr. Gorst

I may help the hon. Gentleman who is thinking aloud about the Government's motives. The same may apply to other clauses which we have already discussed. I think the answer is that, like the nuclear deterrent, the provision will have failed if it has to be used. Exactly the same applies to all the new aspects that we have been discussing. If they lead to a prosecution, they will have failed. Unless the offences are monumentally obvious—by their very nature they will not be—the provisions will never have to be used. In parliamentary terms they are the equivalent of the nuclear deterrent. They are unlikely to be utilised.

Mr. Randall

I am grateful to the hon. Gentleman for his comments. I find that depressing. It suggests that the legislation that we are creating is largely irrelevant.

Mr. Buchan

The purpose is not to use them but to put an apparatus of repression over the whole area. The same deterrence argument is made in support of the bomb. The real point is to prevent expression. It is part of the suppressing of the freedom of the word.

Mr. Randall

I will put forward a hypothetical case which I thought up in the Library just now, having read through the Bill. If we consider all the information referred to, I can imagine such a case emerging. Let us see the implications in the context of the Bill.

Let us suppose that a motor manufacturer, in conjunction with the Government, has produced a performance specification for a motor car. Let us assume that the document is sent by Her Majesty's Government to Brussels and is incorporated into a draft directive which would have confidential status. I hope that the Minister will listen; I should like him to comment on this because in a way it tests the comments of the hon. Member for Hendon, North (Mr. Gorst) and of my hon. Friend the Member for Paisley, South (Mr. Buchan).

Let us assume that a British chap in the Commission allows, perhaps wrongly, the trade association for the relevant part of the industry to have access to the information. So a disclosure takes place without authority. The person in the trade association in turn consults individual member companies to find out what they think about the performance specification. Would that be an illegal act and could there be a prosecution? If so, we are creating legislation which would be unfair to British manufacturers.

If France and other countries do not have such legislation, will some manufacturers within the European Community have advantages over others? Will the legislation put British suppliers at a disadvantage? That is an example of the way in which classes of confidential information pass through the authorisation procedure. How does that process stand up to the legislation? If it does not, the consequences could be quite serious.

In earlier debates we heard that disclosure of international information can have two effects. First, it can damage confidence in our diplomatic service through the breach of confidentiality, and, secondly, the disclosure of confidential information can cause direct harm. Where do the Government stand? Were they encountering difficulties? We need to know whether direct disclosure is causing difficulties for the Government and for European Community countries. How often does it happen? In order to achieve some understanding of the matter—if we were in Standing Committee we would do so through amendments—it would be interesting to know the manifestation of such disclosure. Are press stories diplomatically embarrassing or are we concerned with the exploitation of contracts and commercial information?

Another matter about which I am uncertain, and, since we are in Committee, it should be clarified, is whether there are pressures from the EEC. Is the integration of the European Community a factor? If it is, is there a need for disclosure to be included in the Official Secrets Bill because there is growing confidentiality and more secrecy between the nations of the European Community? Like my hon. Friend the Member for Paisley, South (Mr. Buchan), I am worried about the tightening tip of information and the prevention of journalistic leaks.

I shall not go into detail, but we heard about corruption in the EEC involving £6 billion a year. When such a fraud is taking place—which I understand involves agriculture, shipping, imports, exports and pharmaceuticals—the prevention of disclosures of information raises certain questions.

Mr. Greg Knight

Will the hon. Gentleman tell us how any fraud that involves farming is related to security or intelligence, defence or international relations"?

Mr. Randall

The hon. Gentleman is consulting the Bill, but I am referring to the amendment which relates to international relations.

Finally, what are the shortcomings of the existing arrangements and why have the Government made changes in that way? I have tried to show the Minister that we need a far better understanding of the Bill, which we would have achieved by thrashing it out in Standing Committee. My impression from reading the Bill and gleaning what information I could—of course there is very little to read and few people to talk to on these matters—is that the Bill represents a step in a worrying direction and it appears that section 2 of the Official Secrets Act will not die for a long time.

11 pm

Mr. Teddy Taylor (Southend, East)

I shall take only a short time to raise a serious issue. I fully appreciate the Minister's problem. Often, clauses in legislation on official secrets or, say, child care must be drawn so widely that we create an impossible situation to justify a certain position. I can appreciate how a wide proposal can often be misinterpreted as stating that a ridiculous thing can happen in a certain context.

However, we are entitled to ask the Minister to state the Government's future intentions and policy in broad terms. There is only one matter on which I should like an assurance. Will the Minister assure me that, by and large, and subject to all kinds of matters, it is not the Government's intention to use this clause as a means of trying to suppress reports about frauds, launderings and illegalities? The definition of an international organisation in clause 3(5) is so wide that it can include anything. It covers any matter relating to a State other than the United Kingdom or to an international organisation which is capable of affecting the relations of the United Kingdom with another State or with an international organisation. That can cover anything—any report on any subject—the disclosure of which could result in damaging relations.

We all know that there are massive, costly frauds in the EEC. There have been all kinds of ridiculous reports. For example, the other day we heard about how an enormous amount of EEC money is being spent on financing the Mafia for delivering non-existent fruit juice to NATO headquarters in Palermo. That is damaging and embarrassing. Relations between Britain and the EEC could be embarrassed if a report from one Government Department to another in the United Kingdom were revealed. People in the EEC would be upset. We know that there is a massive fraud in exporting so-called food, and exporting offal and calling it pure beef.

It is not because of some journalists that we know that such things are happening. We have had confirmation from the Court of Auditors that there is a mass, widespread fraud, which is costing every taxpayer in Great Britain a great deal, and is causing great damage. We know that the Government are interested in the matter. The Prime Minister said that she will raise it at the next meeting of the European Council and find out what on earth we can do to stop agricultural fraud.

Mr. Greg Knight

Subsection (1)(a) is about communications in confidence. Our right hon. Friend the Prime Minister is not making such communications in confidence.

Mr. Taylor

I cannot understand what my hon. Friend is trying to get at. Of course my right hon. Friend makes public speeches. But Government Departments write papers for her. Details about further frauds involving the Mafia or the IRA—we know that they are both involved—are not the type of thing that the Prime Minister would make a public speech about. There might be a report from the Minister of Agriculture, Fisheries and Food or from the Secretary of State for Trade and Industry at No. 10. That would be a confidential matter. If revealed, it could damage relations between the United Kingdom and the EEC. My hon. Friend must surely accept that that can happen.

The Government are interested in the matter, and we hope that something can be done about frauds, irregularities and wrongdoings. However, there are other kinds of wrongdoings. Hon. Members may remember that, after giving lots of money at Fontainebleau, the Prime Minister came back with a wonderful piece of paper that said that we would have strict budgetary control. We know now what happened. We did not know what happened the other time. By using accountancy frauds, the Commission was able to put the matter out the window. There were ridiculous accountancy devices, such as a 10-month year in 1987.

I can appreciate that the Government do not want to cause trouble between Britain and the EEC, between Britain and France, or between Britain and Germany by having confidential matters revealed. I can appreciate their point of view, and I am sure that they can appreciate ours and that of the people who want to find out about those matters.

On the other hand, if things are being done which cost people money because laws are being broken—because frauds are being committed and money is being siphoned off to help the IRA and the Mafia—we would surely never use this type of clause to prosecute people because they have revealed an illegality.

We are not gunning for the Minister in any way. We appreciate the difficulty of drafting a suitable clause; if it is too wide, people will say that the Government could do ridiculous things. I hope that we can be assured that the Government have no intention of using the clause to prosecute somebody for disclosing the truth about a fraud, an illegality or a wrongdoing. If my hon. Friend could say yes to that, it would give a clear idea of what the Government have in mind.

Mr. John Patten

I begin by saying yes to my hon. Friend the Member for Southend, East (Mr. Taylor)—yes in a policy sense, because no Government supports fraud. I can answer yes to his question about the clause—he asked whether we would use clause 6—because it deals only with our official information which goes out of this country, provided in confidence, about international relations to another state or to an international organisation.

My hon. Friend will no doubt know, because he took part in the debates on the provision, that clause 3 deals with confidential information provided to this country. I hope that my hon. Friend is content with that reassurance.

Mr. Teddy Taylor

Yes, I am. But information can often be transmitted by the Government to an international organisation about frauds and illegalities taking place elsewhere. In other words, this is United Kingdom information provided by United Kingdom Departments about activities elsewhere. I am grateful for what the Minister said. His answer was clear and precise, and I hope he will accept that, while this is United Kingdom information going out, it could be concerned with frauds happening elsewhere.

Mr. Maclennan

Does the Minister—

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

Order. We should have one intervention at a time. Mr. Patten.

Mr. Patten

I am willing to give way to the hon. Gentleman, Sir Paul.

Mr. Maclennan

Does the Minister feel able to give the assurance that he has given to his hon. Friend the Member for Southend, East (Mr. Taylor)? We had a long debate earlier today in which the Attorney-General made it clear that issues of prosecution—about fraud or anything else —were determined not by Government policy but by him in a judicial capacity. He was at great pains to make that point, and I think that the Minister was present when he made it.

Mr. Patten

I was answering two specific questions asked by my hon. Friend the Member for Southend, East. One was a policy question. He asked whether it was the intention of Her Majesty's Government to undertake cover-ups about frauds, and the answer is no. I expressed the answer as yes because that was how he asked me to express it.

His second question—the answer to which he no doubt knew, but he was probing the Treasury Bench—was about clause 6. I said that it deals only with our official information relating to international relations which we provide in confidence to another state or to an international organisation.

Matters for prosecution under clause 3—under which some prosecutions might be brought—would be for the Attorney-General using his powers under clause 9, and those were the points to which my right hon. and learned Friend referred when he addressed the Committee this afternoon.

I will explain why the Government think this provision is important and then I will answer each of the detailed questions asked by my right hon. Friend the Member for Worthing (Mr. Higgins); the important example about the Spanish newspaper, the El Pais, given by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd); and the hypothetical example posed by the hon. Member for Kingston upon Hull, West (Mr. Randall).

It is clear that the hon. Member for Caithness and Sutherland (Mr. Maclennan) agrees that it is right to protect information relating to security, intelligence or defence that this country provides in confidence.

Mr. Maclennan

indicated dissent.

Mr. Patten

The hon. Gentleman does not agree with that proposition, and I am deeply disappointed. We should be prepared to protect information relating to defence when its disclosure would jeopardise our interests abroad. Equally, information concerning matters of the greatest sensitivity about relations between states whose disclosure would have the same effect should also be protected.

Let me give the Committee examples illustrating the validity of that argument. Even if the hon. Member for Caithness and Sutherland does not want such information to be protected—I repeat that I was disappointed to see him indicate dissent from a sedentary position—I am sure he accepts that international co-operation is one of the best ways of pursuing measures to curb and to combat international terrorism. Surely there cannot be anything between the hon. Gentleman and myself in that respect.

Mr. Maclennan

Of course I accept that intelligence and security information must be protected. My objection is that the creation of an offence under clause 6 will depend on whether the disclosure that occurred in another country was legal. It is information that is to be protected, but the clause ties the offence to the manner in which the information was made public.

Mr. Patten

I am not sure that the hon. Gentleman entirely understands the clause. I shall develop my first example and then give another.

Under the Bill, most forms of co-operation at Government level will fall not under the security, intelligence or defence heads, but under information relating to international relations. If such information is not protected by the clause, the effectiveness of the co-operation could be threatened.

I give a harder example—my first was rather a burst of generality—of how sensitive information could go unprotected should the Committee decide to accept the amendment. Suppose we were debating with another country, or with a number of countries, the possibility of taking measures against a state in response to its violation of human rights. That is something that we discuss from time to time in international forums—and something we are pressed to do all the time in relation to some countries. Suppose also that in the course of those discussions we provided confidential information as to how our country would enforce the measures.

If that information was leaked by an official of one of the countries with which we were co-ordinating our actions against the state with the bad human rights record, and if the journalist to whom that leak was given published it in this country, the state against which we were contemplating taking action might immediately take retaliatory action against any British citizens resident there. As we know from certain things that have been said in some states this week, such a situation could have harmful consequences.

Under the amendment, the journalist would be free to publish—though any prosecution would be subject to the damage tests. Under the Bill, the person making the disclosure could be prosecuted—but how could he be convicted? He or she could not be convicted unless the prosecution proved that they knew the information had originally been provided by our country to other countries, that it had been provided in confidence, that its disclosure by the journalist, for example, endangered the safety of Britons abroad, and that the journalist knew what he was doing.

11.15 pm

We have had some examples put to the Committee. The example of the EC trade association was an interesting one, but the information that the hon. Member for Kingston upon Hull, West mentioned, even if it were official information, would not fall within the definition in clause 3(5). Therefore, it would not be caught by clause 6. In other words, it would not fall within the definition of international relations as set out in the Bill.

My hon. Friend the Member for Aldridge-Brownhills gave a specific Spanish example. I prefer not to talk about the Gibraltar question, which is a policy issue, but I think it was as good an example as any put to the Committee. I hope that I can reassure my hon. Friend. He was perhaps a bit grumpy with me when I intervened in his speech. I hope he did not think that I was in any sense trying to divide him from the hon. Member for Paisley, South (Mr. Buchan). I was simply trying to get to the facts. If he thinks I was making a cheap political point, I apologise. If he reads Hansard, he will not find me making a cheap political point at any stage.

As regards the example my hon. Friend gave of a report in a Spanish newspaper, there would be no offence under clause 6 if a newspaper in this country published what was leaked to and appeared in a Spanish newspaper following a disclosure without authority by a Spanish civil servant unless publication had caused further damage here. In my hon. Friend's case, that would come under clause 3(2) and the jeopardising of our interests abroad—it would be the jeopardising test. It is extremely difficult to imagine circumstances in which any jury would be prepared to convict.

Mr. Richard Shepherd

I know that the Government rely very much on the test of harm as described in clause 3(2), and the anxiety has been about the test of harm being met by clause 3(3)—information of its nature confidential. Although the Government's legal adviser says that it is absolutely certain that that is not so, the Government are to meet the anxiety by redrafting the provision. Is my hon. Friend giving us an undertaking that the Government's amendments will be moved on Report so that the House will have an opportunity to look at how the scheme of things works?

Mr. Patten

I think my hon. Friend was in the Committee yesterday when my right hon. Friend gave the undertaking to reconsider the issue. But I should like to press my hon. Friend the Member for Aldridge-Brownhills a little further. Is he satisfied with the explanation about the position concerning the supposed publication in a Spanish newspaper, in the context of the undertaking given by my right hon. Friend yesterday?

Mr. Shepherd

This is nonsense. Without seeing something, I cannot say whether I am satisfied. I was here yesterday when my right hon. Friend spoke on this matter. He gave an undertaking to redraft the clause. I have asked my hon. Friend the Minister of State whether it will be done by Report. He then asks me—this is the usual circumlocutory route—whether I was present yesterday when the Secretary of State said that he would amend the Bill. The question to which I return is, "Will it be done for the Report stage?"

Mr. Patten

I can only repeat the undertaking that was given yesterday by my right hon. Friend. I hope that my hon. Friend will listen to what I say. On the face of the Bill, as drafted, and not as amended, on the example of the Spanish newspaper that was given by my hon. Friend, under clause 3(2) there would be the possibility of prosecution only if it could be demonstrated that we were jeopardising our interests abroad.

Mr. Shepherd

This is maddening. My right hon. Friend conceded yesterday that there could be a misunderstanding, as the Bill is drafted, and that clause 3(3) triggers off or satisfies the damage test. That is the reason why my right hon. Friend is to amend it. So for my hon. Friend the Minister of State to say that it does not raise the anxiety, as the Bill is drafted, seems to be contradicting the Secretary of State. I do not know why my hon. Friend is getting into a fluff over this; I was merely asking a very simple question.

Mr. Patten

I never quite know what "getting into a fluff" means, but, with the permission of the Committee, I shall read the words of my right hon. Friend from yesterday's Official Report. He said: On behalf of the Government, I am happy that the matter should be aired again, if that is the view of my right hon. Friend"— and there he was referring to my right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour)— when it is procedurally in order to do so. If that is on Report, as you have suggested, Mr. Walker, we will fall in with whatever arrangemens suit the Committee."—[Official Report, 15 February 1989; Vol. 147, c. 337.] My right hon. Friend had to add that conditional "if that is on Report" because that is a matter for selection. [HON. MEMBERS: "Ah!"] No, I am simply repeating for the avoidance of doubt the undertaking that my right hon. Friend gave to the Committee yesterday.

If I were to express a hope, certainly in the light of the strong feelings of my hon. Friend the Member for Aldridge-Brownhills, which I respect, it would be that we can dispose of this matter on Report.

May I deal next with the three important points that were raised by my right hon. Friend the Member for Worthing? On the OECD point, my right hon. Friend seemed to be saying—I see that he indicates assent—that the effect of clause 6 is that the disclosure of information provided to another state could be an offence, but if disclosed here before being provided it would not be an offence.

I think that that would not be the case, because information about economic matters alone does not become information relating to international relations simply because it is provided to another country or to another organisation.

Mr. Higgins

My understanding from the Bill is that it clearly does. Anything is "international relations" if it is translated from one country to another, as I understand the clause. Therefore, we are in the rather absurd position where something that is not subject to criminal law if it is discovered here and published becomes subject to the criminal law if it is given to another country and then published. The moment that one gives some information on, say, zero-rating of VAT to another country, that is in the sphere of international relations.

Mr. Patten

With great respect to my right hon. Friend, I must say that just because a piece of information is supplied to an international organisation or to another State does not mean that it automatically falls within the ambit of international relations. A lot of information flows from one country to another which does not remotely affect international relations. That is certainly not the effect of clause 3(5).

Mr. Buchan

rose—

Mr. Maclennan

rose—

Mr. Patten

I shall deal with my right hon. Friend's second point, referring to information coming back from Brussels.

Mr. Higgins

May we stay with the first point for a moment, because it is not clear? Clause 3(1) refers to any information, document or other article relating to international relations". The example that I have given of a change in the rate of value added tax in the context of an approximation of indirect taxation within the EEC is clearly a matter of discussion in international relations. As I understand it, if the information is obtained here and is published, it is not subject to criminal law. But, more importantly, we have no way of telling which way it has been arrived at and which penalty is to be imposed.

Mr. Patten

The penalty, if any were attracted to the OECD example—I do not believe that one would be—is there for all to see in clause 3(2), which says: For the purposes of subsection (1) above a disclosure is damaging if…it jeopardises the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests or endangers the safety of British citizens abroad".

Mr. Higgins

But it is not just a question whether the information is damaging. We know that it is said to be damaging if it is leaked at all because that shows that we cannot keep things confidential.

Mr. Patten

All that is subject to the damage test that I have just read.

My right hon. Friend referred to material coming back from Brussels. If I understood his point correctly, a prosecution could succeed only if damage can be proved.

I cannot supply my right hon. Friend with the practices and procedures of the EC countries and the United States for dealing with such information, nor do I think that it is necessary. Here I refer to a point raised by the hon. Member for Kingston upon Hull, West. We have no need for any kind of reciprocal information because we are protecting our interests, not those of any other countries. The Bill has been drafted in the light of United Kingdom experience and the protection of United Kingdom experience here.

The amendment would inhibit the Government from pursuing the most effective means of protecting and promoting Britain's interests, and I sincerely hope that the hon. Member for Caithness and Sutherland will not try to weaken the Bill so radically by pushing the amendment to a Division.

Mr. Randall

Let me refer the Minister to clause 3(5) which says: 'international relations' means the relations between States". I was referring to relations between states. At the end of that subsection it says: which is capable of affecting the relations of the United Kingdom with another State". The case that I gave of a motor manufacturer in Europe which involved communications of information between Her Majesty's Government and the Commission would qualify. The various countries involved in motor manufacture would be the ones that would be affected.

We shall not thrash this matter out tonight, but I hope that the Minister will write to me about it before Report.

Mr. Patten

Of course I shall.

Mr. Higgins

Since we are in Committee, may I seek to persuade my hon. Friend that mine is a point that he should look at before Report? Clause 6(1)(a) applies to anything which has been communicated in confidence by or on behalf of the United Kingdom to another State or to an international organisation". Even if we take it that narrowly, it would seem that any information that is communicated to another organisation or state comes within the ambit of the clause. As I was arguing at the beginning, such information may not be of a kind which attracts a criminal penalty within the context of the rest of the Bill, but would seem to do so if it is then communicated abroad.

Mr. Patten

I entirely see the point that my right hon. Friend is making, but I suggest to him that he needs to look closely at subsection (1)(a) which provides for any information, document or other article which—

1. (i) relates to security or intelligence, defence or international relations".

A set of economic statistics does not necessarily relate to international relations.

11.30 pm

Mr. Higgins

The approximation of value added tax clearly does. We are much involved in international negotiations about the approximation of value added tax. It is within the scope of the clause and, therefore, it appears to attract a criminal sanction if the information is leaked and then published in this country. There is no dispute that the approximation of value added tax is a matter of international relations. If I have understood it correctly—indeed my right hon. Friend the Home Secretary said as much—if there were a leak from the Treasury about the approximation of value added tax, that is not something which would be subject to criminal sanctions.

My hon. Friend must study this and consider my specific example, which is a clear-cut one.

Mr. Maclennan

I share the concern expressed by the right hon. Member for Worthing (Mr. Higgins) about this point. Indeed, it was such concerns that led me to table the amendment in the first place. What I should like to press the Minister on, however, is what he has not dealt with—the fact that this offence depends on the domestic law of the country in which the leak occurred.

As I have said, if a leak about the harmonisation of taxes occurs in a country where it is improper, it appears that that would create an offence in this country under the clause. However, if the information is obtained in a country such as the United States under the Freedom of Information Act, there would be no criminal offence as a result of the publication of that information. I ask the Minister whether it is tolerable that the existence of the criminal penalty should turn on the state of the domestic law of foreign countries. That is monstrous, and I do not know why the Minister did not answer the point earlier. I presume that it was because he had not thought of it and had not been advised. The least that the Minister can do is take this matter away. He should not give us an arrogant reply that suggests that he has actually thought about these matters, when he has not even had the courtesy to reply to the points that have been made.

It is extremely arrogant to reply to the debate in the way in which the Minister has. He has not answered the points which have been made and he has treated the amendment as though it were a frivolous one. It is an extremely serious provision which creates a criminal offence which could result in people being sent to prison for two years. It is about time that the Minister stopped treating the House in this de haut en bas manner. Frequently, in earlier stages of the debate, he has had to come to the House to apologise for getting it wrong. The right hon. Member for Worthing has made an extremely important point. The Minister would know that it is an extremely important point, and he should give an explanation.

Earlier the Home Secretary admitted that the definition under clause 3(5) was unsatisfactory. In answer to an intervention from the right hon. Member for Chesham and Amersham (Sir I. Gilmour), the Home Secretary accepted that In this section 'international relations' means the relations between States was not of itself an adequate definition. He undertook to consider how that definition could be tightened up. The passage that the Minister quoted had nothing to do with the undertaking given by the Home Secretary. The Minister must reconsider this matter in the light of the points made in the debate.

Furthermore, the Minister's answer to the hon. Member for Kingston upon Hull, West (Mr. Randall) was wrong. He was wrong to say that the matter was not covered by clause 3(5). The question of specifications of cars presented by this country to the Commission in Brussels to become the subject matter of a European Community directive is plainly an international matter as defined in the clause. By sweeping such propositions aside in a cavalier manner, the Minister again showed his contempt for the proceedings of the Committee which has characterised his whole approach to the Bill from the outset. It is about time that he treated the Committee with some seriousness. Obviously he expects us to let the whole thing go through without any more question just because he said it.

Mr. Corbett

In response to a question from the hon. Member for Southend, East (Mr. Taylor) the Minister gave an assurance that it was not the Government's intention to use the provisions in clause 6 to inhibit the publication of evidence in relation to fraud which originates in this country which is to be sent to Brussels for action to be taken. He gave the hon. Member for Southend, East a specific undertaking that the clause would not be used in that way. However, clause 4(2)(a)(iii) relates to information which impedes the prevention or detection of offences". Quite properly, as fraud is involved, the police could argue, "For heaven's sake, if that gets out it will inhibit us in properly dealing with the detection of the suspected offence." There is at least the possibility that the police might use that argument when they are undertaking this kind of special investigation. That should at least cause the Minister to question the blanket assurance that he gave to his hon. Friend the Member for Southend, East.

Amendment negatived.

Clause 6 ordered to stand part of the Bill.