INFORMATION RESULTING FROM UNAUTHORISED DISCLOSURES OR ENTRUSTED IN CONFIDENCE

HC Deb 16 February 1989 vol 147 cc544-84

Sir Ian Gilmour (Chesham and Amersham)

I beg to move amendment No. 37, in page 5, line 26, at end insert— '(2A) A person does not commit an offence under this section in respect of information which before the time of the alleged offence had become available to the public or a section of the public whether in the United Kingdom or elsewhere.'.

The Second Deputy Chairman

With this it will be convenient to consider new clause 2—Information previously available to the public— 'It shall be a defence for a person charged with an offence under this Act to prove that before the time of the alleged offence the information was publicly known or published in the United Kingdom or elsewhere.'.

Sir Ian Gilmour

I move the amendment in a spirit of hope, but not in a spirit of great optimism in view of the nature of our proceedings so far in Committee. My right hon. Friend the Member for Chingford (Mr. Tebbit) got it seriously wrong in his speech on the guillotine motion on Monday. He said that the proceedings on the guillotine motion were purely ritualistic. He was wrong. The proceedings in this Committee are ritualistic. That is so partly because the Committee has been gagged by what I continue to think is a very iniquitous guillotine motion, but also because the occupants of the Government Front Bench are obviously unable to make any significant concessions. We are gagged and they are shackled. That makes the whole of our proceedings fairly pointless.

When my right hon. Friend the Leader of the House moved the guillotine motion he said that he thought that the Government had got their proposals right. Clearly he meant the word "right". However, I do not think that he meant the word "proposals", because they are not being treated as proposals. They are treated as something that is already law.

When my right hon. Friend the Home Secretary stated with his customary courtesy that the Government were asking Parliament to do this, he did not mean what he said. The Government are telling Parliament what is going to happen. Therefore, I am not moving the amendment with great optimism. However, the other amendments that have been moved so far in Committee were designed to help the subject and the press. My amendment is quite different. It is designed to help the Government, so I hope that it may enjoy a better fate than the other amendments.

The amendment is designed to stop the Government making fools of themselves. All Conservative Members and possibly some Opposition Members will be in favour of it because of that. However, are the Government in favour of the amendment? We will soon find out.

As my hon. Friend the Minister of State will remember, there was a partial prior publication defence in the abortive Protection of Official Information Bill 1979. Why is there not one in this Bill? The only real reason must be that to include one would be an admission of error by the Government about what happened in the "Spycatcher" case. Clearly the prior publication defence was the nub of that case, and to include it in this Bill would be saying, "We got it wrong and we do not want to do so again." That is an understandable human reaction, but the "Spycatcher" case is a good reason for including a prior publication defence because it would stop Governments ever again making quite such comprehensive fools of themselves. I shall return to the "Spycatcher" case later.

Another reason why the Government should accept the amendment is sheer common sense. I refer my hon. Friend the Minister of State to the title of the Bill—the Official Secrets Bill. If my hon. Friend the Minister considers carefully, I think he will agree that, once published, a secret is no longer a secret. It is like an egg—if I may use that word nowadays. Once an egg becomes a chicken it is no longer an egg. It is fairly clear that once something has been published there is absolutely no cause for the Government to become exercised about it.

Let us try to penetrate to some greater rationale for what the Government are doing. We can refer to the highest authority in this matter, namely my right hon. Friend the Home Secretary, who said on Second Reading: there may he circumstances in which the timing and placing of a fresh publication is bound to cause harm which earlier publication had not. A front-page spread in a daily newspaper, for example, on an item previously carried in a technical journal in another country might cause serious further harm. My hon. Friend the Member for Thanet, South (Mr. Aitken) pointed out that that went against what Mr. Justice Caulfield had said in the Sunday Telegraph case. My right hon. Friend went on: It is a question of the harm done to the public interest. I should argue, on the ground of common sense, that it is perfectly possible to have partial, incomplete publication in a distant publication with no particular circulation and then to argue that to pick up that information, put it in a different form and splash it across the news, so causing major circulation would provide a further harm."—[Official Report, 21 December 1988; Vol. 144, c. 464.] My right hon. Friend seems to think that Russian intelligence officers do not read technical journals, confining their attention to the British tabloid press. That seems extremely unlikely. The idea seems to be that our intelligence interests will not be damaged by articles that appear in the technical press. but will be damaged if rather less information—a characteristic of tabloid newspapers—is spread on the front pages.

We are trying to safeguard this country's secrets. We are not trying to safeguard the Government's face, or the intelligence service's face. Once information has been noted and is in the public domain—I have no knowledge of Russian or other secret services, but I imagine that they comb technical journals extremely carefully—

Mr. Budgen

I have the misfortune to disagree with my right hon. Friend on this issue. Is he not assuming that all foreign powers who may wish to gain secrets from our state are immensely efficient, wealthy and well informed? I know that he has a high Tory view of human nature and takes the general view that we are all idle, slothful and incompetent, so it seems uncharacteristic for him to believe that every foreign power reads every newspaper. Surely the basis of the libel law, which covers publication in all sorts of spheres and at all sorts of levels. is a much more reliable guide.

Sir Ian Gilmour

I do not regard my hon. Friend as idle or incompetent, and he is probably not slothful. He certainly has not been slothful in the Committee, but has been on his customary good form. I think that he is saying that while it is all right for information to be given to the Russians and the Chinese—he probably thinks that they are fairly competent—we should cash in on the fact that some extremely incompetent south American country may not yet know the information, and conceal it from the British people on the off chance that, for example, the Venezuelans may not know either. If he thought more about that proposition, he might not wish to stick to it. The idea that the British people should be kept in ignorance on the off chance that some petty principality or minor republic has not read a technical journal is not one that the House should entertain.

The only conceivable, serious reason to vote against the amendment is to keep the British people in ignorance. For the sake of their amour proper or that of the intelligence service, the Government say that, although the Russians already know information because it has already been published in some American journal, it is important that it should not be known to the British people because they might object to it. Perhaps the Government might say to their allies, "You can see that it has not been published over here because we control our press better than you." I do not think that that is an emblem of skill.

Mr. Greg Knight (Derby, North)

Is my right hon. Friend saying that he believes that there will never be circumstances in which a second or subsequent disclosure would cause harm? That seems a risky proposition

Sir Ian Gilmour

It does not seem risky to me. Such circumstances might exist, but there would be a greater risk in keeping the British people in ignorance while nearly all the rest of the world knew the information than in the one in a thousand chance that, once something is known to most of the world, further damage will be done by repeating it.

We have pretty high authority on prior publication because it was the basic issue in the "Spycatcher" case. Lord Bridge of Harwich, who is a high authority not only as a judge but as a former chairman of the Security Commission—we can hardly get better than him—said: I can see nothing whatever, either in law or on the merits, to be said for the maintenance of a total ban on discussion in the press of this country of matters of undoubted public interest and concern which the rest of the world now knows all about and can discuss freely. Lord Oliver of Aylmerton made the same point when he said: To attempt, even temporarily, to create a sort of judicial cordon sanitaire against the infection from abroad of public comment and discussion is not only, as I believe, certain to be ineffective but involves taking the first steps upon a very perilous path. Those two quotations sum tip the situation very well. I hope that my hon. Friend the Minister will break the habit, not of a lifetime, but of this Committee, and accept the amendment.

7.30 pm

Mr. Robin Corbett (Birmingham, Erdington)

The right hon. Member for Chesham and Amersham (Sir. 1. Gilmour) put the argument in a nutshell with blinding simplicity. Once a secret is known, it is no longer a secret—it is as simple as that. This is a case where second thoughts are not best. Sometimes they are, but not in this case.

In 1979, the Government's published Bill accepted a partial prior publication defence. In other words, once the horse has bolted, there is little point in locking the stable door. In 1989, the Government say in paragraph 62 of the White Paper: It seems to the Government that this rationale"— that is, the argument in favour of prior publication— is flawed. It might have been more honest if the Home Secretary had said more plainly and honestly that the Government had changed their mind. There is nothing the matter with that, although I and other hon. Members may object to their new decision.

The White Paper, in defence of that, goes on to postulate an extraordinary situation. It says: in certain circumstances a second or subsequent disclosure may be more harmful. For example, a newspaper story about a certain matter may carry little weight in the absence of firm evidence of its validity. We now come to the astonishing part. The White Paper says: confirmation of that story by, say, a senior official of the relevant Government Department would be very much more damaging. Why on earth would even the deputy Prime Minister, Bernard Ingham, be authorised—as even he would have to be—to confirm such a story, touching as it would on vital interests of the United Kingdom? It is totally impossible to conceive of any circumstances in which any Government official would be authorised to make such a confirmatory statement. I do not believe that it would happen. In such circumstances, with information touching properly on our vital national interests, there is every good reason why such a story should not be commented on.

I can hear the Prime Minister now—either the present Prime Minister or my right hon. Friend the Member for Islwyn (Mr. Kinnock)—saying that it was not his or her practice to comment on matters of security and that they did not intend to do so. They would then sit down. However, the question remains. If a senior official is not authorised to confirm a story which, on first publication abroad, was known to be positively inaccurate, what possible harm can repetition do? I agree very much with the right hon. Member for Chesham and Amersham. The bottom line seems to be no more than saving the Government's face and avoiding embarrassment.

The Government would know whether the story published abroad was true or not. If they chose not to reveal which, as the Home Secretary outlined in the White Paper, an official would be authorised to confirm it. That can be put in the White Paper only to mock. The White Paper becomes positively bizarre when it says: Similarly, the publication of a list of addresses of persons in public life may capture the interest of terrorist groups much more readily than the same information scattered in disparate previous publications. Perhaps the Minister will tell me whether it is the concept of a list that is at issue. Is it safe to publish a single name? The Home Secretary introduced the concept of that list. If a list is involved, how long is a list? The implication is that a list is longer than one particular name. How many names have to be on a list to justify the rejection of the prior publication defence?

Mr. Gerald Bermingham (St. Helens, South)

I have been thinking about the matter as my hon. Friend has been speaking. Do the Government seriously consider that documents such as "Who's Who" and the telephone directory are capable of becoming the bibles of the terrorist world?

Mr. Corbett

Not even this Government would consider treating all those listed in "Who's Who" as a group and notifying them under the Bill.

Is the argument rejecting the prior publication defence concerned with the reprinting of a single specific name—and I shall give some examples in a moment—or with a group of specific names which is sensitive because of the jobs that the people concerned do? Let us consider an example. Suppose that The Baltimore Sun revealed that Mr. Colin McColl was the new head of MI6 and that The Guardian reported that in turn. What possible risk to Mr. McColl or MI6 can either the first or second publication cause? We have, after all, recently debated the Security Service Bill which admits, for the first time in statute, the existence of MI5 and MI6.

Quite properly, we know the name of the Chief Constable of Northern Ireland—although not yet the name of his successor—and it is published. We know the name of the General Officer Commanding in Northern Ireland, the name of the Secretary of State for Northern Ireland and the names of judges there. That seems to go against the Government's argument in the White Paper that, because of terrorists, it could be dangerous to publish some of those names. If that is so—and I understand the argument—I must ask the Home Secretary how many more sensitive jobs are carried out on behalf of this Government than the jobs of those senior people in Northern Ireland? If the Home Secretary seeks, through the Bill, to prevent the republication of the names of sensitive office holders, how have those names escaped clause 5? Either the Government are being carefully selective or, as I suspect, they want to be able to pick and choose under the Bill what shall be kept hidden from the British public, although it is known abroad.

Mr. Tony Marlow (Northampton, North)

Is there not another aspect? Some information is of value to the press, the media and in terms of writing books. If someone gets hold of information in this country which, if he published it, as the Bill now stands, would mean committing an offence, is that not a great incentive for him to rush off to some other country, publish it there and then come and stand before the media in this country and make a fortune?

Mr. Corbett

We are still left with the proposition of the right hon. Member for Chesham and Amersham, and we cannot get away from that. Once a secret is disclosed, it is no longer a secret. There could be an argument about damage—and I understand that—but by definition, such a secret is no longer a secret—[Interruption.] Perhaps I could be allowed to make my own speech.

Mr. Hurd

This is very helpful. Is the hon. Gentleman saying that if damage is proved, the prior publication defence should fall?

Mr. Corbett

No, I was saying that I understood the argument. I was trying to demonstrate the mess that the Government have got themselves into. I referrred to what is said in the White Paper about the publication of a list that could be useful for terrorist purposes, whereas the Government now do not seem to follow that practice with sensitive posts.

Mr. Ray Whitney (Wycombe)

If the hon. Gentleman does not accept my right hon. Friend's proposition, is he saying that he does not want the harm test? Or is he saying that, if harm is done, he is prepared to accept that? He must accept either my right hon. Friend's proposition or that one.

Mr. Budgen

rose—

The Second Deputy Chairman

Order. There should be only one intervention at a time.

Mr. Corbett

I am trying to demonstrate—perhaps I should have left this on one side—that what the Government seek to achieve in the Bill, in the context of the list quotation that I read from the White Paper, is something novel. It has never been done or attempted before.

Mr. Richard Shepherd

rose—

Mr. Corbett

I should like to continue for a moment. I shall see if I can demonstrate my point this way.

Mr. Budgen

rose—

Mr. Corbett

I must get on.

We know the names of those who head the CIA and the FBI in the United States and they are listed in the Washington telephone book. Earlier this year, The Daily Telegraph published the name of the new head of the KGB. No action was taken. The Moscow correspondent of The Daily Telegraph rejoices in the name of Ian Smiley, which is most appropriate. He told us—and no harm has been done to relations between this country and the Soviet Union—that the new boss of the KGB is General Vladimir Kryuchkov. Nothing has happened—[Interruption.] Hold on; I was just saying that nothing happened, so presumably we are allowed to know that.

It follows from what the Home Secretary argued in the White Paper that there are circumstances in which we would not be allowed to know about Mr. McColl being the head of MI6 or that last year the Prime Minister appointed Mr. Patrick Walker as head of MI5. Or perhaps it does not. The Home Secretary wants everyone to be certain of what risks they run, but the confusion remains.

On 4 January The Guardian published news of the appointment of Mr. Colin McColl as the head of MI6. On 23 January—in column 369 of Hansard—I asked the Attorney-General whether proceedings were to he instituted against Mr. Richard Norton-Taylor, the distinguished journalist on The Guardian and its editor, Mr. Peter Preston, for that publication. I got a one-word answer—"No." I take it that that matter is safe, but will such matters remain safe under the Bill? I assume that The Guardian picked the information up from the Washington Post.

Paragraph 14 of the White Paper properly refers o the need to ensure that no one is in any doubt as to the circumstances in which he would be liable to prosecution. The Home Secretary will know, of course, that there is immense uncertainty at the offices of The Guardian in Farringdon road as to whether it will be safe to publish such information in future.

Paragraph 63 of the White Paper says: in cases in which the prosecution would under the Government's proposals have to show that disclosure was likely to result in harm, the offence would not be made out if no further harm was likely to arise from a second disclosure. [HON. MEMBERS: "What is harm?"] Let us get this straight. At the start of the process, the Secretary of State for Defence, I suppose, takes advice on whether that second publication has caused further harm. I assume that if he concludes that it has not, and if he has that advice confirmed by the Attorney-General, there will be no prosecution. Or are the Government saying that the matter is to be decided, not by the Attorney-General, but by the courts and that it is for the courts to determine whether harm has been caused by a second or subsequent publication and that, to that extent, what is proposed in the clause is a system of automatic prosecution?

Mr. Hurd

indicated dissent.

Mr. Corbett

The Home Secretary shakes his head, but I cannot believe that he is saying that he alone will decide whether or not a reprint has caused further harm. I cannot believe that even he will take that upon himself.

Mr. Hurd

I shall not be deciding anything. The whole point of the Bill is to remove such discretions from Government. As my right hon. and learned Friend the Attorney-General explained—and as is normal—it will be for the prosecuting authorities to judge in the ordinary way whether the second disclosure has caused harm. If they believe that it has, a prosecution may result. The prosecution would then have to show that the second disclosure had caused harm under the different tests of harm in the Bill. The defence could then argue that it had not—that the first disclosure did but that the second did not. The hon. Gentleman has totally failed to prove that there are no circumstances whatever in which a second disclosure could do harm.

Mr. Corbett

I am grateful to the Home Secretary for that explanation. So, in judging whether to prosecute, the test is not whether a little or a middling amount or a lot of harm has resulted but whether any harm has resulted.

Mr. Gorst

The matter is clearer even than my right hon. Friend the Home Secretary has made it. The first occasion when publication takes place and harm is done will be followed by the second occasion when harm may be done and it will be simply for the courts to decide which did the most harm. That must be perfectly clear.

7.45 pm

Mr. Corbett

I am grateful to the hon. Gentleman.

My point is that, when a report is seen in an overseas publication, editors and journalists in this country will be incapable of properly assessing whether further harm may or may not be done when they are deciding whether to publish an allegation in the public interest. Let me give an example—

Mr. Budgen

Does not the hon. Gentleman start from a misunderstanding of what constitutes a secret? A secret is a relationship. If he and I have a piece of information in common, it may be a secret between us. It will not cease to be a secret merely because he tells a third party; it will merely have been disclosed to another. My right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour) said that a secret is like an egg—that when one cracks it, it ceases to be a whole egg, but that is a false analogy.

Mr. Corbett

With respect, I do not accept that.

Sir Ian Gilmour

A secret is not a relationship at all. According to the Concise Oxford Dictionary, it is something unknown or unrevealed.

Mr. Corbett

I am grateful to the right hon. Gentleman for that explanation.

Let me come back to my example. Suppose that the Washington Post ran a story saying that Britain had given secret undertakings to the United States Government not to use nuclear weapons based in Britain without the prior approval of the United States Government. Let us suppose that the report was based on an unauthorised leak by an official at the Ministry of Defence or the Washington embassy. Let us further suppose that a newspaper or television programme here wanted to run a story about it on the basis that it was a matter of public interest, whether true or not—I acknowledge that it would be of much more interest if it were true. For the sake of argument, let us suppose that it is not true and, improbably, that the Government put up a spokesman to deny the story. As I understand it, if the Government decide that even though the story is untrue and even though it has been published for the second time, it could still cause damage, those who published it here could be prosecuted.

Now let us suppose that the story is true and that the Government deny it. Suppose that, as in the case posited by the right hon. Member for Old Bexley and Sidcup (Mr. Heath), there is a by-election pending and the disclosure is not convenient, so the Government deny that the information is true. That seems to suggest that prosecution could go ahead on the damage test. That must be so.

Under the Bill, no action can be taken if an unauthorised disclosure of our secret information is made by a foreign national abroad. But suppose that Sky television reported the hypothetical secret undertaking not to use nuclear weapons without prior American approval. What would happen then? The answer seems to be, "It depends." If the Sky satellite broadcast into x thousand British homes came as a report from the New York bureau, I think that no action could be taken, but if the Daily Express reported what it had heard on Sky television, the editor, Nick Lloyd, could be marched straight into Pentonville.

Mr. Rooker

After a trial.

Mr. Corbett

Of course, after a trial.

Let us suppose that Sky broadcast that report, not from its New York office but from London, up to the satellite and back down to the United Kingdom. In that case it would be caught, and so would the editor of any newspaper reporting that item. This is the stupidity of what the Government are proposing: the same information, the same disclosure, but the mere accident of a different office—one in New York, one in London—making all the difference between prosecution and no prosecution.

In fact, the position would be even more ludicrous, because x thousand people watching Sky television coming out of New York could quite properly have information, whereas millions not watching Sky would not be able to read about it in the Daily Express or see it on ITN later that night. The Home Secretary knows fine well—and this is another aspect of the ludicrousness of the situation—what Sky will do in those circumstances. Where is it going to broadcast that information from? London or New York? The Home Secretary knows fine well that Sky will ensure that such information always comes from New York so that the long arm of the Government cannot reach it.

There is something else that I hope the Home Secretary will be able to tell us about. I do not know whether this is a case of second publication, but it is close to it. What about all the imported world-class newspapers that come into Britain—Le Figaro, Le Monde, La Stampa, International Herald Tribune? They carry information which, under this Bill, it would be an offence to carry. Some of these publications even come in via one of these new-fangled mangles. What happens in those circumstances? Somebody idly buys La Stampa in a tobacconist's shop in Soho because he happens to enjoy reading that paper. Apparently he is all right, but if a British journalist from the Daily Mail or The Daily Telegraph picks up a copy of La Stampa and says, "Oh, that is an interesting story; I will offer it to my editor," the newspaper will not be able to publish it because that would be genuine republication.

Does the Home Secretary want to say something?

Mr. Hurd

indicated dissent.

Mr. Corbett

Fine.

This is a very serious matter for editors and journalists, and an extremely serious matter for the British people in regard to their right to access to proper information. How on earth are editors and journalists expected to assess the potential harm surrounding a story published elsewhere earlier, upon which no Government official has commented? I will give the Home Secretary the answer to that question. The Guild of British Newspaper Editors put it very succinctly when it said, "This is an impossible task." Unless the Government change their mind about this, it will inhibit publication of information not desperately vital to our national security, information which, in other circumstances, those newspapers might well have published.

Earlier in the debate, we reached the heights of farce when the Government argued that it might be all right to publish some of this information in a small magazine with limited circulation but not in the Daily Mail. Presumably the argument is that, because of cash limits in the Kremlin, there are restrictions on its ability to take out magazines. That was said earlier in this debate—or something very close to that. Are the Government still going to use that argument? Is the accident of circulation going to be among the measures of damage or potential damage? I say "accident" because, clearly, only a limited number of people are interested in aeroplanes, for example, and subscribe to Flight, against the millions who buy the Daily Mail. So I ask the Home Secretary yet again where in this is the certainty for editors and journalists.

The Government have not made out their case for changing their view of 10 years ago. They would lose nothing by changing their mind back and, perhaps, getting a little much-needed respect over this Bill. They would not lose anything, because the much-loved damage test would remain in the Bill even though the prior publication defence was admissible. I hope that, when the right hon. Gentleman has listened to the debate on this all-party amendment, he will come to the conclusion that the words used in 1979 were right and that those in this Bill are wrong.

Mr. Tony Baldry (Banbury)

The speech we have just heard was very revealing. We are now on the fourth day of the Committee stage, having had a Second Reading, yet even now it is quite clear that hon. Members on the Opposition Front Bench have completely failed to master the Bill. Even at this stage the hon. Member for Birmingham, Erdington (Mr. Corbett) says that the Home Secretary will make the decision about prosecution. He has not grasped that, under clause 9, prosecution decisions will be a matter for the Attorney-General.

It is quite clear also—and I will expand on this in a second—that the hon. Gentleman and his hon. Friends have not grasped the provisions of clause 6(3). Perhaps the reason the hon. Gentleman was so keen to rush through his speech that he realised at last that he really had not grasped what the Bill was about. Or perhaps it was the realisation that there are now only five other Labour Members in the Chamber, despite his party's much-vaunted complaints about the guillotine.

I wish to make three points. First, my right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour) was absolutely right in saying that this is an Official—official—Secrets Bill. It is concerned with official—information—official British information—and information that is not official falls, by definition, outside its parameters. Therefore it is quite untrue that this legislation would in any way prevent the publication, in this country, of information made publicly available by the Government of any other country. So, to start off, we are dealing with a limited amount of information; it is information that is official to this country.

We should also note that clause 6(3) explicitly states that no offence is committed, even if official information provided by us to another state, and then made available by that state under its own laws, is published. Under the Bill that is not an offence. Let me put it in simple terms: if the British Government make available to the American Government information that is then published under that country's freedom of information legislation, further publication of that information is not, and cannot be, an offence under clause 6(3).

Secondly, even when we are dealing with official information, in those categories of information where the harm test applies, the defendant can, of course, argue that the fact of any prior publication meant that damage had been caused by the first disclosure and that any subsequent publication of the information did not cause the harm specified in the Bill. That defence—the harm test—is already available to the defendant. It would be for the prosecution to prove damage, and it would be for the jury to decide.

Thirdly, having regard to the fact that we are dealing with official information and that the defence of the harm test exists already, it would be wrong in principle and in practice to have an absolute offence of prior publication. My right hon. Friend and those who support his amendment are saying that there should be an absolute defence of prior publication, that once the information is seen anywhere, that is a total defence.

Mr. Aitken

As my hon. Friend is learned in the law, I wonder if he could clarify one point in his argument in regard to the harm test. As I understand the Bill, the harm test does not apply to what might usually be called the absolute offences—those in the categories in clause 1, and some of those in clause 4 to do with interception, communication, and so on. If I am right about that, what is the relevance of the harm test? Surely it does not apply if an absolute offence has been created.

Mr. Baldry

My hon. Friend answers his own question. It has been made clear throughout the proceedings on the Bill, from Second Reading onwards, that there are certain provisions to which the harm test does not apply.

Mr. Hurd

If my hon. Friend the Member for Thanet, South (Mr. Aitken) reads clause 5(3) he will see that there is indeed a damage or a harm test for all offences in clauses 1 to 3. We are not talking now about what the former member of the intelligence or Security Service has done; we are talking about the actual disclosure.

8 pm

Mr. Baldry

The thrust of the point is that the harm test applies to most of the Bill. The vast majority of Government information has been taken out of the parameters of the Bill. We went through all that on Second Reading. The harm test applies to most of the information referred to in the Bill and a defendant could pray that in aid. Even where the harm test does not apply—where there is an absolute offence under clause 1—my hon. Friend the Member for Thanet, South (Mr. Aitken) should take into account clause 5(3), as my right hon. Friend said.

The absolute defence of prior publication does not exist in the law at the moment. It has never existed in the law of this land. If a defendant says, "No harm has been done by my revelation, because the harm was already done," that deals with cases such as "Spycatcher" which my right hon. Friend the Member for Chesham and Amersham sought to ridicule. A defendant could pray that in aid before a jury. As my hon. Friend the Member for Derby, North (Mr. Knight) said, to argue for such a general defence one must assume that there could be no circumstances in which a second or subsequent disclosure could cause harm.

My right hon. Friend the Member for Chesham and Amersham and other hon. Members who support the amendment might be so cavalier as to take that risk, but I—

Mr. Richard Shepherd

I should be grateful if my hon. Friend would give an example of the risk. Information that we give in confidence to foreign Governments may be leaked abroad by being published, for example, in Corriere della Sera. That point has been explored before. Therefore, the information is widely disseminated. Our courts have dealt with that. What example has my hon. Friend in mind of subsequent revelation which will cause as much harm as the original disclosure?

Mr. Baldry

My hon. Friend seeks to assert that there are no circumstances in which a subsequent or second disclosure could cause harm. I, and, I suspect, the vast majority of hon. Members, are not prepared to take that risk. It is an unnecessary risk, given the provisions of the Bill.

Mr. Whitney

May I offer to my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) an example? We now know about Chevaline. The secret of Chevaline was kept from the British public and from the British Parliament by a small group in the Labour Cabinet. They kept it from the rest of the country because they did not wish the main part of the Labour party to know about it. There can be little doubt that the Soviet intelligence services knew about the decision on Chevaline. It would have been possible for the Soviet security services to leak that in a remote newspaper, and the information would then have been picked up by a British newspaper. The effect would have been that the Labour Government would have turned tail and cancelled Chevaline, and that would have damaged British defence interests.

Mr. Baldry

I am grateful to my hon. Friend. I do not think that those who support the Bill need to give examples. The burden of proof is on those who so cavalierly take the attitude that it is possible to take the risk of subsequent or further disclosure.

Mr. Richard Shepherd

There is no risk.

Mr. Baldry

My hon. Friend says that there is no risk. He must stand by that. Given the protection within the context of the legislation—the Attorney having to agree a prosecution, the defence of the harm test, the limited amount of information which is covered, and the fact that it has to be official information—there is no need for the nation to take the risk of subsequent disclosure causing harm. If those who support the amendment wish to be so cavalier, that is up to them, but I suspect that, when the Committee has to vote, it will decide that there is no need to be so cavalier with official information.

We have a fine balance in the Bill between the interests of a community and the proper rights of the citizen within it. The reason why those who support the amendment seek to create examples is that, throughout all the proceedings on the Bill, they have sought to put up artificial coconut shies so that they can try to knock them down. They have to look the people in the eye and say, "We are prepared to take a risk that there could never, in any circumstances, be a situation where the subsequent disclosure of official information could cause harm, and we are prepared to offer any defendant an absolute defence in all circumstances." That defence would be that, the information having been published elsewhere, the defendant could say, "There can be no prosecution in those circumstances because I could not have done any harm." I do not think that the Committee should be led down that lane.

Ms. Diane Abbott (Hackney, North and Stoke Newington)

We have had occasion over the past few days to contemplate the dangers of fundamentalist religion. I am obliged to contemplate the dangers of fundamentalist Government Back Benchers who claim that they have no need to prove their case. One does not need to be an expert on the security services or even on the affairs of the Home Office to know that, once a secret is revealed, it can no longer be a secret. When asked to demonstrate their case by giving examples, even the most loyal of Government Back Benchers were floundering.

It is common sense that a secret, once revealed, is no longer a secret. Therefore, why are the Government trying to push the defence of no prior publication? However much the Government may wriggle, and whatever byzantine examples they build, if we are to imagine circumstances in which a second publication causes harm when first publication did not, we have to imagine massed ranks of spies, enemy agents, criminals and journalists who are asleep, illiterate or drunk, or who are generally falling down on their duty.

I must speculate on why the Government are trying in the clause to promote a proposition which is patently absurd. I can come up with only two reasons. One hates to go over painful history, but the first reason relates to the "Spycatcher" case, where the Government's case was largely smashed by the defence being able to demonstrate, by much painstaking work, that virtually everything in the disputed book had been published elsewhere by Mr. Chapman Pincher. All the Bill can be understood if we consider the past embarrassments of the Government. That is the whip that is flicking the poor Secretary of State on. That is the impetus to make sure that similar embarrassments do not happen again. It is because of what happened with prior publication in the "Spycatcher" case that the Government are trying to promote a transparent absurdity.

The second reason why the Government are trying to pass into law the transparent absurdity that a secret that has already been published is somehow still a secret is the notion, not of keeping our secrets from enemies of the public, spies or enemy agents, but of keeping secrets from the people themselves. It is a "them and us" notion. It is the notion that it is all right for insiders to know something, but it would be rather too embarrassing if the public at large knew about it.

Because the motivation behind the clause is not the public good but past Government embarrassment, and the "them and us" notion that, in some paternalistic sense, there are some things that insiders should know but the general public should not know, and because the attempts of Government Back Benchers to defend that absurdity have been so transparent. I speak in support of the amendments.

Mr. Hurd

It might be for the convenience of the Committee if I gave at this point the Government's reaction to the amendment.

When we spent a substantial time discussing the public interest defence, I felt that a major clash of well argued principles was involved. In this case, the loophole which has been opened by the amendment has not been justified by my right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour). I shall try to explain why.

The main principle which we are trying to adhere to in the Bill involves harm and whether disclosure was harmful. That principle runs through all our arguments, even when we argue that there is an absolute offence because all forms of disclosure in that category would be harmful. It is not a matter of great principle whether the information has been published before. The central issue is whether the disclosure was harmful. It may well be that in many cases, perhaps even in most cases, the question whether there has been prior publication is relevant in assessing harm. No one denies that. The question is whether it must always be the governing consideration, whatever other arguments might be produced about harm or likely harm.

Mr. Gorst

How does my right hon. Friend reconcile what he has just said with the provisions of article 10 of the European convention on human rights? After talking about freedom of expression … regardless of frontiers", there is a reservation in paragraph 2 which says: The exercise of these freedoms … may be subject to such … conditions as are prescribed by law and are necessary". If there is prior publication abroad, how will it be possible to say that the provision is necessary. Even if there is harm, that provision is not recognised by the article that I have quoted.

Mr. Hurd

We discussed article 10 yesterday, and the hon. Member for Caithness and Sutherland dealt with it. I shall come to the point as to why I believe that harm which could be caused by secondary publication could meet the criteria of harm in the Bill and therefore the criterion in article 10 of the European convention on human rights.

The hon. Member for Birmingham, Erdington (Mr. Corbett) mentioned the Sky channel. The hon. Gentleman is under a misapprehension, as Sky is within the jurisdiction of this country and therefore within the scope of the Bill because of the uplink from the United Kingdom, although the satellite is Luxembourg-based. Therefore, the worries that he built upon that distinction do not exist.

I entirely accept what the hon. Gentleman said about The Guardian newspaper being in a muddle about that. In the nicest possible way, may I say that no other newspaper has been so consistently muddled and has so muddled its readers about the Bill. I do not understand why newspapers should be in a muddle about this point, because the assessment that they will make is exactly the same for publication or republication. If the criminal law is to apply, newspapers will have to think before publishing something which might fall within the scope of the criminal law. The problem will not be made any more difficult, because the tests of harm remain the same for publication or republication.

To return to the main point, which is extremely important, in many examples second publication would do no harm because, if there was any harm, it had been caused by the first publication. In the unlikely event that the prosecuting authorities decided to mount a case, the defence would argue precisely that: it would argue that no damage had been done. Moreover, the prosecution would have to prove that the defendant knew or had reasonable cause to know that such damage would be caused. That is a very high hurdle for a prosecution which was trying to show that, although something had been published elsewhere, there had been damage on secondary publication which met the test of harm.

8.15 pm

In clause 5, the test of harm is very high in those circumstances. There is no question of there being no prior publication defence. The question is whether that defence should be absolute and should sweep the board in all circumstances, and whether it should trump all other arguments before they are made. As my hon. Friend the Member for Banbury (Mr. Baldry) said, that puts an onus on the supporters of the amendment to justify so absolute a defence. We are saying that it should not be absolute and that it should be for the jury to decide in such cases.

I am sorry that I missed the first few minutes of the speech of my right hon. Friend the Member for Chesham and Amersham, but I listened to him carefully. He and the hon. Member for Erdington were deeply and delightfully out of date. My right hon. Friend was thinking solely in terms of the Soviet Union. That may have been realistic in the old days, and I do not wish to discuss whether the Soviet Union monitors or wishes to monitor every publication so thoroughly and so immediately that no second publication could possibly cause harm. I shall not go into that, because it is not relevant to this argument.

My hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen) left the Chamber after making an extremely relevant point. We are not talking only of the Soviet Union and other super-powers; we are talking emphatically about a number of other Governments which, in one way or another, support state terrorism. There is no reason to suppose that they are equipped to read every publication and that they would automatically pick up anything useful to them from a first publication. Nor are we talking only about Governments. Here I drop the banter to stress a crucial point.

During the debate on the Security Service Bill, I mentioned the increasing effort of the security services devoted to counter-terrorist work. There are quite a few organisations—two or three in Northern Ireland and others in the middle east—which are quite sophisticated and probably attempt to piece together, bit by bit, disclosure by disclosure, how we counter their efforts in relation to techniques, equipment or personnel. [Interruption.] The hon. Member for Erdington casts scorn on that, but it is not a comical matter. If there were a leak or a disclosure in some relatively obscure publication of something which was secret or important to counter-terrorism—the hon. Member for Linlithgow (Mr. Dalyell) will take my point—there is no reason to suppose that the people who are trying to keep ahead of us and piece together how we deal with their activities would necessarily pick up that publication the first time.

Therefore, it should be open to the prosecution not to make any assumptions but to argue before a jury that the second publication had caused the harm. As I said, it will be a high hurdle that it will have to pass. It will have to prove not only that harm had been done but that those who published it knew that harm was likely to be done. They are two high hurdles. To say that that is wholly and on every occasion totally absurd, that that risk can be easily run and that there are no circumstances in which the fact of the first publication should not be an absolute and total defence seems to be a risky business.

Mr. Gorst

Surely the problem and, perhaps, the fallacy in my right hon. Friend's argument is that the prosecution will also have to prove that, on the first occasion, publication was not known to the people to whom it might have been damaging were it to be known by them.

Mr. Hurd

The onus will be on the prosecution to prove beyond reasonable doubt that the second publication did harm of the kind defined in the Bill. As I said, that will be a difficult business. I am not saying that the prosecution will have an easy task. I am saying that it must be given the opportunity in such circumstances to deploy that case. It should not, regardless of any conceivable circumstances, be ruled out as a line of argument.

Mr. Richard Shepherd

This is clearly a most important point. There is a corresponding case. My right hon. Friend is effectively and reasonably putting an anxiety about some circumstances—not all—of a subsequent publication. Will he give hon. Members just one instance, so that we can see what is identified, of a subsequent publication that has been damaging or has been held up in the courts or anywhere? I just want one instance.

Mr. Hurd

I am giving instances not of past cases but of present dilemmas—[Interruption] I am not talking about hypotheses; I am giving a series of facts.

Mr. Shepherd

Not of past cases.

Mr. Hurd

I am speaking not of past cases, I agree, but of what is happening today. What has happened in the past four or five years, and what has certainly happened in the work of the Security Service, is a major concentration of effort on countering terrorists and the supporters of terrorists. My hon. Friend is right to take the matter seriously.

This example is important—other people may think of other examples—and it is a real example in the work of Government. I would not be happy if there were this loophole which, in all circumstances, would enable the prior publication defence to be absent. I do not think that would be safe. I refer to the point which my right hon. Friend made at the beginning of his remarks and which the hon. Member for Hackney, North and Stoke Newington (Ms. Abbott) developed in exaggerated terms.

It is not possible to regard the absence of an absolute prior publication defence as the result of an effort to avoid embarrassment or to keep British people in ignorance of something that other people know. We must consider the harm tests and the hurdle that the prosecution would have to surmount when faced by first publication. We should also consider the point in the Bill about which I reminded my hon. Friend the Member for Thanet, South (Mr. Aitken) and which covers all the offences listed in clauses 1 to 3. It is not plausible to argue that this is an attempt to keep people in the dark.

Mr. Shepherd

Part of what my right hon. Friend has been contending for has been recent history. I refer to the "Spycatcher" case and the investment of huge sums by the British Government to pursue right up to the House of Lords something that was previously published and available all around the world. One pressure is the sheer cost of the state prosecuting a newspaper for publishing something that had been published and previously available. Will the Home Secretary give me an instance of such a cost to society at large on the hypothesis that a subsequent revelation might be harmful? I can understand a first revelation being harmful, but I should like an instance of a second revelation being harmful.

Mr. Hurd

If this amendment were passed, that kind of instance would be more likely. The Committee must consider whether it is worth taking that risk. My hon. Friend mentioned the "Spycatcher" case. That involved the civil law—the search for injunctions. I think that my hon. Friend was satisfied by the ultimate judgment, but there was a great deal of speculation that we were proposing to put into the Bill matter that would alter the civil law on confidentiality. Contary to expectations, we did not do that. We, too, believe that we can live with the judgment in the civil case.

This is a matter of criminal law. It is a matter of deterring within the narrow field that we are talking about. It is a matter in which criminal sanctions might lie if deterrence failed. In the great majority of cases in which prosecutions might be tempted to prosecute, the presence of a first publication would create difficulties for them, which they would see that they were unlikely to surmount. In cases in which they unwisely proceeded to prosecution on a second disclosure, the jury would simply be unconvinced that the second disclosure had caused harm.

There could be—it is right that the Committee should understand this point—a relatively small number of cases in which the prosecution should be able to argue that the second disclosure had done one or more of the harms specified in the Bill and that the person disclosing for the second time knew that that was likely to be the result. There might be few cases, but they could be serious and dangerous.

Mr. Maclennan

The Home Secretary is clearly floundering. He has failed to answer a question by several Conservative Members about whether there were any real circumstances in which the repetition of what is not any longer secret could be harmful. By his failure to address that question, he has made it abundantly plain that there is not any serious, or indeed any, risk.

Mr. Hurd

The hon. Gentleman lashes out at me. Having spent a bit of time on this matter now, does he say that no harm could be produced by the relevation in a major national newspaper of techniques in counter-terrorism which had previously been disclosed in a technical journal? Does he say that there is no possibility of serious harm resulting from that second disclosure?

Mr. Maclennan

By his riposte to my attack, the Home Secretary has demonstrated that he is trying to move the burden of proof from himself. He has been asked by several Conservative Members to give any instance he cares to choose of a situation in which the repetition of what is already public—that is, what is already not secret—could be damaging. Despite the fact that he has until 10 pm, and all hon. Members are ready to give way to him, he has not been able to show that the repetition of what is already in the public domain could be harmful.

Mr. Rooker

There is a difficulty. I accept some of the thoughts behind the Home Secretary's position. If he gave an example to satisfy hon. Members' questions, the immediate response would be for hon. Members to ask "Why did you not prosecute?" Only that kind of example would be meaningful, but, clearly, it will not come from the Home Secretary.

Mr. Maclennan

The Home Secretary's unwillingness or inability to give an example is a reflection of what is plain common sense—that what is already public cannot be secret. It is not only a matter of common sense but a matter of the meaning of language.

Several Hon. Members

rose—

8.30 pm

Mr. Maclennan

I will give way in due course, but I hope that hon. Members will allow me to develop my argument.

The right hon. Member for Chesham and Amersham (Sir I. Gilmour) put the case which has not yet been answered. When official information has been published, it is no longer secret and therefore it cannot in any real sense of the word need to be covered by the law.

Several Hon. Members

rose—

Mr. Maclennan

I have not yet had an opportunity to develop my argument. I shall be willing to give way later.

The Parliamentary Under-Secretary of State for the Home Department (Mr. Douglas Hogg)

The hon. Gentleman is making a bad case very slowly.

Mr. Maclennan

I am making it slowly because of the number of interventions.

I take seriously the Home Secretary's assertion that we must address the issue whether publication has caused harm. But this prior publication defence is intended to deal with issues where there is an absolute offence—for example, concerning information about the interception of communications or actions done under a warrant or by members of the intelligence or security services. These are absolute offences where there is no harm test.

Mr. Jeremy Hanley (Richmond and Barnes)

rose—

Mr. Maclennan

No, I must be allowed to finish at least a few sentences.

There being no harm test involved, it seems clear that it is unreasonable not to recognise that if information of that kind—it is the "Spycatcher" situation—has been published, it should be open to journalists to repeat it.

Mr. Hanley

Would the hon. Gentleman seek to defend a person in a situation where it was impossible to prove that he had put information in an obscure journal merely so that he could subsequently publish in a broader arena, and in a situation where it was impossible to prove that he had leaked the information to the first obscure journal?

Mr. Maclennan

That point was ably dealt with by the right hon. Member for Chesham and Amersham, when he pointed out that, on the whole, spies are more inclined to read the technical journals than the columns of the Sun to get their information, and the damage will have been done by the first revelations.

Mr. Douglas Hogg

Sloppy thinking.

Mr. Maclennan

The Under-Secretary has come into the Committee late and has not heard any of the discussion on the amendment. If it is sloppy thinking, it is thinking that was espoused by the Conservative Government of which he was a member when they published the earlier measure. At no point during the debate has the Home Secretary attempted to explain why he has stood on his head, for that is what he has done. Although he has said, "We got it entirely wrong," he has not been prepared to give the reasoning why he has changed his mind.

Mr. Hurd

I have not changed my mind.

Mr. Maclennan

The right hon. Gentleman may not have changed his mind, but the Government have. The measure published in 1979 had a prior publication defence, as he knows.

A telling point was made in an intervention by the hon. Member for Hendon, North (Mr. Gorst) about the virtual certainty that what is proposed runs foul of article 2.2 of the European convention on human rights. The refusal to allow prior publication to be regarded as a proper defence is plainly disproportionate. There can be no question but that if the matter came before the European Court—as it definitely would if it ever got before a British court in the first place—we should again be dragged back and have the Government's position struck down.

The Home Secretary said yesterday when I was dealing with the relevance of article 10 and the freedom of information guaranteed by the European convention that he was prepared to consider the issue again and return to the matter at a later stage, having taken further advice. I hope that that is his intention, for if there is any part of the Bill which needs reconsideration, it is that applying to the republication of what is no longer secret. It must be ridiculous to make it a criminal offence to republish what is in the public domain.

Mr. Whitney

The hon. Member for Caithness and Sutherland (Mr. Maclennan), like all other critics of the Bill, resolutely refuses to take on board the basic point that harm must be created. I do not know how often we need to repeat that. Unless additional harm can be proved, there can be no point in bringing a prosecution and one would not be brought.

As my hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen) said, we are not living in a simple world of John Le Carré, of spying, of the Soviet Union and of dead letter boxes. It is a much more complicated world, one in which many other countries are potential enemies and involved in state terrorism. Indeed, the techniques used against the national interest go wide, into the sphere of political warfare and disinformation. It is against that much more complicated background that we must consider this legislation.

I offer the Committee a case history so that we may understand what we must legislate for in relation to disinformation techniques and the like. My example is manufactured in the sense that it was a manufactured piece of intelligence from the Soviet intelligence service. That much seems to be well documented. It could have been a piece of real hard intelligence, although I am sure it was not.

In mid-1983 the Soviet intelligence service started to create a story that AIDS was a phenomenon which had emerged from United States genetic engineering experiments in Fort Detrick in Maryland. It then sought to use the prior publication technique to sell that information around the world, and originally the Soviet magazine Liturnaya Gazeta quoted allegedly the Indian magazine Patriot as the original source of the story. Subsequently, Patriot denied that it was, but by that time the disinformation was on its way.

It ran around the world, so that by 26 October 1986 it was a front page story in the Sunday Express, a major coup for that paper here. A certain Professor Jacob Segal was billed as a French professor—he was in fact an East German—and the same story was retailed. It went a month later to a Spanish magazine and then to an Argentine magazine, and each time it was quoted as being an original source.

I offer that story to the Committee as a demonstration of a bogus piece of information, but a technique against which we must frame our legislation. It might have been a piece of real intelligence from British official sources.

Mr. Hugh Dykes (Harrow, East)

I am not only most grateful to my hon. Friend but astonished by the example that he gives, which disproves his own argument. Is he postulating that because a rubbish newspaper with a big circulation chooses to run a daft story based on disinformation or lies generated by the Soviet intelligence service, that story should be subject to the test of harm or of prior publication?

Mr. Richard Shepherd

Besides, what does that have to do with the Bill?

Mr. Dykes

My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) asks what it has to do with the Bill, which is an even more relevant question.

Mr. Whitney

The example that I gave relates to a spurious item of intelligence, but the Committee should consider the techniques that are used in the world of disinformation and prior publication.

For an example nearer home, I revert to the hypothetical case that I used when I intervened in the speech by my hon. Friend the Member for Banbury (Mr. Baldry), which seemed to create some amusement among my hon. and right hon. Friends.

Mr. Richard Shepherd

I want to be helpful to my hon. Friend, but he is travelling over terrain that is not to his advantage. Yesterday, we had the benefit of the background to the Chevaline case, but it bore no relationship to the example that my hon. Friend gives. It does not serve the purpose that he has construed that it will serve, but serves that identified by the right hon. Member for Plymouth, Devonport (Dr. Owen) in his exposition of that story, as to the nature of maintaining a vital defence secret from society. The right hon. Gentleman made the point that classification was broken under authorisation by our then Secretary of State for Defence, Francis Pym.

Mr. Whitney

I am entirely aware of the point to which my hon. Friend refers. The right hon. Member for Plymouth, Devonport (Dr. Owen), who obviously cannot be with the Committee tonight, put a certain gloss on those events. It may be that he had a certain interest, given that he was so closely involved in them.

I ask my hon. Friend and the Committee to extend their imagination further. I well understand the role played by my noble Friend Lord Pym, but the situation then was different. The Conservative party and the British people as a whole understood—and still understand—the need to keep our Polaris submarines and nuclear missiles effective. The problem with the Labour Government's responsible leadership at that time was that they had grave doubts about the Labour party. I hope that my hon. Friend now better understands the example that I hypothesised.

In 1975 or 1976, the Soviet network was, one must assume, effective enough to understand the work on Chevaline that had been put in hand. That is not the issue. But how easy it would have been to use the Indian Patriot or some other external newspaper as the medium of primary publication, and then to run in Britain the great story that the Labour Government were embarking on the Chevaline programme. Would the Labour Government have had the courage to admit to that decision, or would they have caved in? None of us shall ever know. My assumption is that the Labour Government would have turned tail and fled from Chevaline, and that British defence interests would then have been harmed.

Ms. Abbott

I have listened carefully as the hon. Gentleman has given the Committee that example not once, but twice. I am clear that the second publication would have embarrassed the then Labour Government, but I am not clear why it would have materially affected British defence interests. Embarrassment is one thing, but matters of defence and national interest are another.

Mr. Whitney

It is safe to assume that the information in question would have been well in the hands of hostile intelligence services, and had it appeared in an obscure magazine published in some remote African town, no harm would have been done. But if that report had been picked up by the British press, it would have argued, under the test of prior publication, that as the "Tanganyika Echo" had carried that story, it could do so. If it had done so, it is 99 to 100 per cent. certain that the then Labour Government would have turned tail on their decision to develop Chevaline. Consequently, British defence interests would have been harmed.

8.45 pm

Sir Ian Gilmour

My hon. Friend's contention is that, had the provisions of the Bill been law at that time, the then Labour Government would have brought a prosecution against any newspaper that published such a report. Is he seriously suggesting that that example is relevant? My right hon. Friend's Bill may be illiberal, but I do not believe that it is as illiberal as that. Is my hon. Friend seriously suggesting that if a newspaper republished information that a Labour Government was spending money on updating nuclear weapons, they would have brought a prosecution?

Mr. Whitney

I was seriously suggesting that, in the circumstances that I hypothesised, the then Labour Government would have given their eye teeth for the protection given by the Bill, because then such a report could not have appeared in the British press. I refer to the deterrent effect of such a provision. I do not know what a former Labour Government might have done, but does my right hon. Friend agree that British defence interests could have been harmed? We are all citing hypothetical cases, and by definition are stretching to know what might happen in certain circumstances.

I offer the Committee another example.

Mr. Richard Shepherd

My hon. Friend's first example seems risible to me. Is he suggesting that a defence of second publication is unnecessary on the basis that a Government might stop what they were doing, and that that of itself must be against the national interest? That is a ludicrous line of argument.

Mr. Whitney

This is a more serious subject than my hon. Friend seems to allow. The record of a very few people in the last Labour Government keeping the Chevaline decision very secret is well known. The chances of that secret being known at the time would have been much greater without the defence of prior publication. I do not know what kind of secrets we might be talking about today, but it requires little imagination to bring the argument into the present and into the future, and to understand the defence of the national interest as opposed to a harm test that would have to be accepted by a court.

Mr. Edward Heath (Old Bexley and Sidcup)

Is my hon. Friend saying that if information of the kind he described was published in a technical journal overseas and then republished in this country by newspapers, and that as a result, CND supporters in the Opposition brought down a Labour Government, that would be treated as a case of harm?

Mr. Whitney

My right hon. Friend takes a more sanguine view than that to which his normal state of pessimism has accustomed us. He assumes that the Labour Government would have fallen. I hope that he is right. I agree that their chances of falling at the next general election would have been high, but that might have been some time away, and we would have suffered four more years of harm under a Labour Government that had written off a sensible defence policy that my right hon. Friend had launched.

I give the Committee another example, which concerns publication of the name of a former head of MI6. These days, we are accustomed to such names being published, but in days before, that was not the case. Once that name was published in a German magazine in 1976, a British newspaper carried a photograph of the head of MI6 on its front page. That is dangerous. It exposed that individual to terrorist risk. That is another example of prior publication. Admittedly, and sadly, in that area, we have moved on.

This is the real world. This is not the simple world in which my right hon. Friends are able to make fun of these propositions. The serious proposition is that the harm must be proved. It is very difficult; it must be perfectly clear to a court. Therefore it is extraordinary, as has been said many times this evening, that those who criticise the Bill seem to think that there can be no case at all in which harm can be created. The reality, of course, is that it can be created.

Mr. Dalyell

Unlike the hon. Member for Caithness and Sutherland (Mr. Maclennan), I do not think that the Home Secretary was floundering or bantering on this issue. If the House of Commons is to be responsible about this we have to take what the Home Secretary says about Governments extremely seriously. In fact, it is frivolous not to.

I say to the hon. Member for Wycombe (Mr. Whitney) that the Chevaline issue was very complicated. When I tried to rebuke Jim Callaghan when the first bombshell of Chevaline came, he replied very sweetly, as only a former Prime Minister can, "You didn't have the wit to ask me." Nor, indeed, did any of us. Secondly, technically, I am told, Chevaline was a very complex upgrading issue. It was not a new project and there was not an element of deceit. I am not at all sure that it was a good example, but I do not want to stray.

I want to put two questions to the Home Secretary. He intervened to respond to a point that was made much earlier by the hon. Member for Thanet, South (Mr. Aitken) about the repetition of information conveyed and covered by so-called absolute offences. The right hon. Gentleman referred, in replying to his hon. Friend, to clause 5(3). Could I ask him to confirm that clause 5(3) has nothing to do with absolute offences? It refers to offences under clauses 1 to 3, which contain harm tests. The absolute offences that we are talking about are in clause 4(3). Any and every repetition of this information is a fresh offence regardless of whether it causes harm and even if it is clear that no harm is done. The 20th or 30th repetition of information covered by clause 4(3)—that is, unauthorised phone tapping—is still an offence. Is this not a ludicrous situation?

Mr. Hurd

The absolute offence to which the Committee has given most attention—quite naturally, it took up most of our first day—is created under clause 1: that is, the offence for a member or former member of the security or intelligence services to make a disclosure which relates or purports to relate to security or intelligence. That offence, commonly called an absolute offence, is covered, as the hon. Gentleman will see, by clause 5(3), which he quoted. He is perfectly correct to say that the other so-called absolute offence, which has to do with warrants legally issued, comes under clause 4 and is therefore not caught by clause 5(3). But the first one, revelations by members or former members of the security or intelligence services, is covered in the cases we are talking about.

Mr. Dalyell

I thank the Home Secretary for his courtesy.

On the question of Wright, which I think a lot of this is about, my opinion—I say nothing that I did not say on behalf of the national executive when I was asked at the Bournemouth conference—is that Wright was a fantasist. He was plain wrong on a whole list of things, for instance about Alistair Watson. I believed the former Prime Minister, the right hon. Member for Old Bexley and Sidcup (Mr. Heath), when he said that it was quite untrue that Victor Rothschild introduced Wright to him when he was Prime Minister. That appears in the book, and there are all sorts of other inaccuracies. Everything that one has first-hand knowledge of seems to have been rather wide of the mark.

My question is this: in these circumstances why did the Government not shrug their collective shoulders, smile gently and let it sail by? What was the purpose of drawing such attention to this? One has one's suspicions, but they may not be for this debate, that it was to make a political point, which was very different from the ostensible reason.

I shall be supporting, I suppose—with all the reservations I have mentioned, because we take the Home Secretary's point very seriously—the spirit of the amendment tabled by the right hon. Member for Chesham and Amersham (Sir I. Gilmour), because of the sort of case that occurred in the Zircon affair. It may be within the recollection of the House that Zircon got great publicity, although when one looked at the film it was perhaps all a bit tame.

The serious point for the Committee is that in a magazine called Interspace there were far more useful technical details of the elevation of Skynet IV than appeared either in the film that Duncan Campbell made or in any sections of the press. In that technical magazine, edited by Roger Stanyard, there was information that was far more useful; and the February 1985 Newsletter, like every other Interspace publication, was on the mailing list of Intersputnik, the technical headquarters in Moscow. It really seems a bit absurd to make such a fuss about Zircon when the technical details were on the Soviet mailing list.

Mr. Corbett

Does my hon. Friend share my memory of the Zircon affair, that the Government's major objection was that the name of that project had become public and this would send yet another signal to the United States that the Government were unable to keep secrets?

Mr. Dalyell

I think that it was partly about the Americans and partly about another film in the series, which was politically embarrassing, called "Cabinet". In a sense it just proves that what is politically embarrassing is far more serious than national security.

I sit down with the reflection of Sir Frank Cooper, the former permanent secretary to the Ministry of Defence, who said that all this information was well known to every schoolchild in Milton Keynes.

In these circumstances I think we ought to take on board the general principles.

Mr. Whitney

I am grateful to the hon. Gentleman for giving way. During the Zircon affair, am I not right in my recollection that the Leader of the Opposition was invited to the Ministry of Defence on Privy Council terms and given a full briefing and came out acknowledging that a security breach had been committed?

Mr. Dalyell

I just leave it that I was not present at that meeting.

9 pm

Mr. Ivan Lawrence (Burton)

I do not know why so many Members from all corners of the House—the hon. Member for Linlithgow (Mr. Dalyell) is an exception—are treating this very important issue of national security in quite such a cavalier fashion. I am not sure that it will do much for the regard with which this place is held in the country when people hear these debates.

I object to the amendments on two grounds. First, they might do harm to the future security of the state, and secondly, they would make it more difficult for an innocent person accused of an official secrets offence to be acquitted. I do not understand why Opposition Members think that either of those results is worth arguing for.

I also do not understand why the fact that a damaging disclosure has been made somewhere before should be a complete defence to a second publication, if that second publication is itself harmful. Of course, I have heard both Conservative and Labour Members say that once a secret is out it is no longer a secret, ha ha. But we are not playing with words; we are talking about harm to the national interest. I do not understand why my hon. Friends are arguing that if some damaging revelation reaches two people it might just as well reach 2 million people. There may be many circumstances where some things are damaging and they become more damaging the more people know about them.

I have heard some of my hon. Friends asking other hon. Members for examples. I can give some examples. If the news that some gold bullion is walled up in the Hammersmith flyover appears in the sort of publication that virtually nobody reads and then wide coverage is given in a national newspaper, so that all the criminals in London start hacking away at Hammersmith flyover to get the bullion out, surely the fact that more people know about that official secret—as it may be under clause 4, which covers crime—is more harmful?

Suppose that a nuclear aeroplane crashed somewhere in the Channel and somebody somewhere says "Well, I think it is just four miles off Calais and five miles down from a rock," and that is published in a publication. Perhaps it is just speculation, but then somebody else decides to publish it because it is a fascinating secret that would generate a lot of newspaper sales. An enormous amount of harm might be done to something, which it was vital should not be published in the national interest.

Perhaps somebody will give the name of a villain who is kept in custody at Winson Green prison. Perhaps at some time it would be easier to spring him from there than from some other prison. The more people who know that fact, the more likely it is that serious criminal offences will be committed.

One could go on. The point is that the more people who know something that is damaging and harmful, the more harm may be done. We are talking nonsense if we say that, just because a fact has got out in one place, it can never cause more harm, however many times it is repeated to other people. That just goes against common sense.

Mr. Corbett

I must defend the integrity of the staff and governor of Winson Green prison, although that is by the by. Is the hon. and learned Gentleman really saying that those responsible for the management and conduct of our national press are all as irresponsible as he is making them out to be?

Mr. Lawrence

Sometimes—and that "sometimes" might do a lot of harm to the security of the nation. All I am saying is that it is wholly reasonable for prior publication to be an argument for not convicting someone where no harm is done by a second or subsequent publication, but it is wholly unreasonable to say that harm will never ever be done by a further publication. Those who have been advancing that argument are—I hope they will forgive me for being impertinent—talking nonsense.

What of the man who wanted to sell his official secrets to a publisher? It would make a mockery of the Bill if such a person could get round it by going to the United States, Australia, the Solomon Islands—I hope that no one will say that that is a terrible defamation of the Solomon Islands—or anywhere in the world and publishing, if, as a result of that publication, he could argue that, because the secret had been published elsewhere, that was a defence. He would be able not only to drive a coach and horses through the legislation, but completely to ignore it. I cannot believe that hon. Members want no Official Secrets Act. I simply do not understand why they seem to be agitating for the amendment.

Mr. Richard Shepherd

If an individual, whether a Crown servant or otherwise, publishes abroad in contravention of his duties under the Act, he commits an offence. No defence of prior publication protects him against that. If he comes back to Britain and is therefore in the jurisdiction, he will be prosecuted, and rightly so.

Mr. Lawrence

But we may not be able to prosecute him for an offence that he has committed abroad, if he stays outside the jurisdiction and there is no way of bringing him back to Britain for trial. That is precisely what happened with Peter Wright. Although he might have committed a criminal offence if what he had done had been committed in Britain, he could not be prosecuted for that criminal offence because he was outside the jurisdiction and there was no way to get him back into Britain to be prosecuted.

I have the greatest respect for my hon. Friend and for the courage and tenacity with which he has proceeded, but if he thinks that the point that he has just made is a good one, some may wonder whether all the points he has been making by way of intervention have been as good as he thinks they are.

Sir Nicholas Bonsor (Upminster)

I agree with almost everything that my hon. and learned Friend has said, but I hope that he will do justice to what my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) has said. He appears to be saying that if the person who had committed an offence by publishing abroad came back to Britain he could be prosecuted, but not otherwise. Surely the same is true if he remained abroad and published here, so I do not think that that is a particularly good argument either.

Mr. Lawrence

The suggestion in the amendment is that there should be a defence if there is prior publication in the United Kingdom or elsewhere. If the prior publication had been in another country where there was no extradition, then, even though that prior publication was a criminal offence, the claim that prior publication is no protection when a criminal offence has been committed simply would not apply. A man who had released that publication in breach of our Official Secrets Act could not, in fact, be convicted if he was in a country from which there was no extradition. Therefore, no criminal offence would have been committed. As a result, the prior publication defence would be perfectly usable if we gave one.

I am saying that a coach and horses would be driven through the Bill, or it could be completely sidestepped, by somebody going abroad, committing a criminal offence by publishing something that is harmful to the state and then somebody here saying that there was prior publication. If the second publication causes no harm because all the world knows what was published in some other country, there will be no prosecution.

That brings me to the second heading. We talked about the same kind of thing when we dealt with the public interest defence. I do not understand why those who want to protect the honest whistleblower want to make it more difficult for him to be acquitted. Perhaps they do not follow the legal process. If the burden is on the prosecution to prove that harm has been caused and it is obvious that there has been no harm because there has been some prior publication, no prosecution may be initiated.

Let us suppose that the Attorney-General or the Director of Public Prosecutions, or whoever makes these decisions, decides that he wants to prosecute because he believes that there is a chance that somebody will be convicted—which is not a good way of initiating prosecutions. If the prosecution is unable to discharge its burden of proving that harm is being caused because of the release of that information, the case will be stopped by the judge. Whether there is no prosecution in the first place or whether the case is stopped by the judge, those things will occur before the onus moves to the defendant to initiate a defence. By that time, he has been through the expensive process of having lawyers spending more time in court and he is running the risk that his defence might go wrong and a jury might disbelieve him.

I was howled down this afternoon because I dared to defend the independent Bar. However, in this case right hon. and hon. Members want to give more money to lawyers, want more prosecutions to be initiated, want longer trials and want to put more innocent people at risk. I do not understand that.

We have never had a defence of prior publication, because of the harm that it might do to the security of the state. It is not that it will certainly do so on tens of thousands of occasions, but that it might do so on some occasions. It is a sensible preventive device not to allow any more chance of harm to the national interest than is necessary.

I have heard no good reason why we should start now with the defence of prior publication, especially if it might mean more innocent people being placed at risk.

Mr. Heath

I wish to make three points. First, I say to my hon. and learned Friend the Member for Burton (Mr. Lawrence) that the reason why there has been considerable hilarity over some of the speeches this evening is that the examples which have been cited of a possible offence have been ridiculous. My hon. and learned Friend, in his opening remarks, gave no examples which one could in any way relate to the serious matter of national security. That is why we were amused.

Secondly, a few years ago the right hon. Member for Leeds, East (Mr. Healey) intervened in a debate—he spoke as a former Secretary of State for Defence and Chancellor of the Exchequer—to tell the House that the Chevaline question was decided by the 1970–74 Government. I have never disputed that. That makes the discussion tonight all the more irrelevant.

Mr. Whitney

rose—

Mr. Heath

Of course I shall give way. I know that my hon. Friend has a bee in his bonnet.

Mr. Whitney

I recognise that it was my right hon. Friend and his Government who took the first decision, and he very much deserves to be congratulated on it. Had the example that I suggested transpired and if, in the first 18 months of a Labour Government, they had faced the attack which would have been launched and they had cancelled Chevaline at that stage, does not my right hon. Friend feel that the national interest would have been harmed?

Mr. Heath

No. I do not accept either the proposition put forward by my hon. Friend or the one put forward by myself.

What happened was that Lord Wilson, as he now is, in 1964 fought the election on the abolition of nuclear weapons in this country, and was kept in power until 1970 by maintaining them. As he was Prime Minister at the time that my hon. Friend mentioned, he would have done exactly the same if anybody had put forward the sort of propositions which my hon. Friend has just mentioned. I have none of the anxieties of my hon. Friend, and I am sorry if they keep him awake at night.

The third question was the one raised by my hon. and learned Friend the Member for Burton and one or two hon. Members previously. Why do we say that this amendment is desirable? I shall explain it as briefly as I can.

9.15 pm

My right hon. Friend the Home Secretary has gone to considerable lengths to show us how difficult it would be for the prosecution ever to bring a successful case in this matter. He has not been able to give any examples in which such a case could be brought, and he is an imaginative man. He writes excellent novels, but he cannot produce any convincing novel tonight. I accept that he has gone to great lengths to show that the hurdles which any prosecution would have to jump, to have any chance of success, are very high.

I accept that, so why am I worried about it? If the Bill remains as it is, the use of the threat of prosecution against the media in every form is not only undesirable; it is disastrous. The Government have only themselves to blame for these thoughts being in people's minds after 1 he lengths to which they were prepared to go over "Spycatcher", and after the events surrounding the BBC incident in Glasgow.

We have heard examples of the way in which news and information have been suppressed and we are forced to recognise that a Minister, the Attorney-General, the Home Secretary or someone acting in the name of the Prime Minister may go to an editor, or to the chairman of the BBC or ITN, and say, "Look, this is in the Bill. We've heard that you've got hold of something which was published in a small column in a technical journal in Singapore, and you are now proposing to publish it. If you do, the prosecution will wade in. Think of what it's going to cost you to try to fight this off." That is the real danger, and it should not be allowed to exist in a parliamentary democracy.

We are now the most secretive country in the world, and that is not healthy. We have heard far too many examples of that technique being used against the media. It may well now be used against Members of Parliament and others who have information because they travel widely and read journals.

When I am asked why I believe that the amendment should be accepted and why, even though there is a slight risk of it happening, I am prepared to take that risk, the answer is that I believe that the greater danger comes from the use of the threat against the media and those who have the responsibility to keep the public informed and against the right that the British public has to be informed. That simply is the justification for dealing with the matter through the amendment.

Mr. Lawrence

Is my right hon. Friend aware that the ladies of the Burton Conservative Association hang upon his every word in this place? They were greatly disturbed when he quoted what I said in a debate on this Bill. He said: No, let us get it away and let us get to bed. The only thing that concerns him"— that is, me— "is how early he can get to bed."—[Official Report, 13 February 1989; Vol. 147, C. 86.] I hope that my right hon. Friend will be good enough to retract that quite scurrilous allegation or, more interestingly, give examples—or is he saying that what he said was in the public interest?

Mr. Heath

My hon. and learned Friend had better consult Hansard and he will see how he ended his address. I am sorry that the ladies in his constituency are worried about him. I should have thought that, using such phraseology, some of them might have been rather flattered. Perhaps he can explain why the gentlemen of Burton are not in the least worried about that.

Mr. Foot

It is a great delight to follow the right hon. Member for Old Bexley and Sidcup (Mr. Heath), who is in such excellent form, and getting his troops off to bed as he used to when he was Chief Whip. He is doing so a little earlier tonight. It is dangerous for any Conservative Members to interrupt him, because they will be sent off 'without any chance of returning with a sufficient retort for quite a long time. They should be more cautious about the way they interrupt the right hon. Gentleman.

In one sense I differ from the right hon. Gentleman: I have more sympathy for the Home Secretary than he displayed. I shall return later to the more general points that he made.

I agree with my hon. Friend the Member for Linlithgow (Mr. Dalyell) that it is absurd for any hon. Member to say that the case that the Home Secretary made to us tonight was not serious. Of course it was. He argued it seriously, and although he could not give any specific examples when asked to do so, he described the modern circumstances in which such republication could be severely damaging.

It is no good any hon. Member contributing to this debate without admitting that the Home Secretary presented a serious argument to the House and the country. In some debates it is much more important to go for the strong parts of an opponent's argument than the weak ones—there are usually plenty of those. When I hear some of the right hon. Gentleman's supporters, I am reconverted 100 per cent. to the case against him. If we can only isolate the Home Secretary and his case from that embroidered by some of his supporters, we should try to answer it.

Although unable to give actual illustrations, the right hon. Gentleman was able to show that dangers could exist—particularly in the growth of terrorist affairs throughout the world. Nobody would dispute that those dangers are increasing year by year—almost month by month. I understand that there are circumstances in which it could be said that republication could place in the hands of terrorists in some countries information that they might not have received from the original publication. That part of the right hon. Gentleman's argument at any rate should be accepted, perhaps not as conclusive, but as one part of the general argument with which we must deal.

When we agree with the Home Secretary and admit that such cases exist and that he is trying to guard us and the rest of the country against peril, surely, in fairness—and particularly in the light of the previous discussions—the right hon. Gentleman should try to understand the other side of the argument. He has not really attempted to do so.

I speak as a journalist who, for quite a number of years, was the editor of a newspaper. It is a difficult job; people have to make up their minds on many matters in a short space of time. They have to make judgments, not necessarily in the same way as politicians, who may have a little longer. With newspapers going to press every day, journalists have to make up their minds quickly. I believe that the Home Secretary and the Government have a duty to consider the kind of problems that journalists face.

I am talking about only the most reputable newspapers. I do not care about the Sun and other such newspapers, which I do not regard as newspapers at all. Nobody needs to worry about them—although they are the newspapers that are fed through the corrupt machine to which the right hon. Member for Old Bexley and Sidcup sometimes refers. I do not wish to disregard what he has said on that subject. Of course he is perfectly right to describe the relationship between the Government and the press generally—which is of serious consequence to the country—as corrupt, particularly in the way that information about terrorism is fed to newspapers.

What happened in the Gibraltar case was outrageous. The Home Secretary told us to look at terrorist examples. Yet a few days after the shooting in Gibraltar, what was fed out to the press by the Bernard Ingham machine and taken up by papers such as The Sunday Times was lies, for which they had to pay thousands of pounds in damages to people who had been maligned. Some of those libel actions were fed out from No. 10 Downing street—[Interruption.]—and it is no good for the Home Secretary to laugh.

We want to clean up these matters. It makes it more difficult for the House to deal with this question, with the terrorist question and with its dangers in the proper way while we have that corrupt relationship between No. 10 Downing street and a great section of the press. The Government have come near to proving the case on that, because they have not had a word to say in answer to that charge. But in the light of the new terrorist dangers, in the light of the way in which those matters are now dealt with by No. 10 Downing street and elsewhere, and especially in the light of the way in which the best newspapers in the country—I leave out all the Murdoch lot—had to deal with the problem all through the "Spycatcher" affair, it is not satisfactory that the Home Secretary should take no account of the problems that they had to face.

Mr. Hurd

rose—

Mr. Foot

I shall give way in a moment.

The Independent, The Guardian and The Observer, three reputable newspapers, had to choose whether to risk prosecution. Newspapers do not like to be prosecuted because they are considered to be guilty of injuring the defence of the nation. All those newspapers had to take the decision whether to reprint matters that were widely published in other parts of the world. They were told that they would be committing an offence if they did so and would have to spend tens of thousands of pounds if they went ahead.

Mr. Hurd

I am grateful for the fair-minded comment at the beginning of the right hon. Gentleman's speech. I wonder whether we can strike a bargain. Can we agree that we do not have to choose between saying that prior publication can never be a defence and saying that it must always be an absolute defence? Can we meet in the middle and leave it to the jury?

Mr. Foot

I am grateful for the Home Secretary's intervention. I was going to come to my bargain, although I do not have the permission of the right hon. Member for Chesham and Amersham (Sir I. Gilmour) who moved amendment No. 37, so I would have made it my own proposition. The Home Secretary has come to a proposed bargain before, but this is not a satisfactory bargain. The House must decide such matters. It is no good to say, "Leave it to the jury." What will be put to the jury? We know what judges have said. We do not always have to listen to them, but the judges said at the end of the "Spycatcher" affair, "We had better have some greater clarity about the law. The only people who can do that are the House of Commons and Parliament." That is what the judges should say when they find themselves in a hopeless mess and tangle, as they were at the end of the "Spycatcher" affair, and that is what they did say.

It is no good for the Home Secretary to say that we do not need to change the law, but should leave it to the jury to sort out afterwards. That is not satisfactory and does not meet the criticisms about prior publication that were made by the judges. At the end of the "Spycatcher" affair, the implication of most of the judgment was that there should be some changes in the law to prevent the British Government from going ahead with an appeal when they had a case that could not survive. The Government failed hopelessly. We must sort the matter out. It is no good to say that we should leave it to the jury. We must have a change in the law which makes the matter clearer.

If the Home Secretary really wants a bargain, he should consider amendment No. 37, which the right hon. Member for Chesham and Amersham moved so excellently. Nobody who has listened to the debate can deny that there is a powerful case for the amendment.

9.30 pm

I do not think that the Home Secretary was putting up a fake case. I think that he was speaking from the point of view of what he considered to be necessity as a person who is partly in charge of dealing with the appalling problems of terrorism that we face in modern society. If the Government had the good will to do so, they could modify the amendment to satisfy both objectives and to give proper guidance to the jury. We could add the word "substantially" so that the provision read, "information which … had substantially become available". That would guard against the danger of the abstruse single matter which it was claimed would give the defence for the larger newspapers back here.

I am sure that the Government could come up with an amendment which would be satisfactory for their purpose but help the decent editors in this country—those who are trying to serve the public by providing them with news which, in the "Spycatcher" case, was available all over the world. What happened in that case was an absurdity of the first order, and I do not imagine that the Home Secretary would dream of defending it. The principal decent newspapers—I am excluding all the Murdoch lot—could not report, for the benefit of the people of this country, what was being read about all over the world. That is not tolerable, and it is not tolerable for the Home Secretary to come along and say, "I am very sorry. I cannot do anything about that. Compared with the other problems with which I have to deal, it is not very important." It is not good enough, after all this muddle, to say yet again that we must leave the jury to sort it out.

I plead with the Home Secretary yet again—as hon. Members have on other clauses of the Bill—to take the provision away and see whether he cannot find an alternative wording to ensure that, even if prepublication were not a defence in 100 per cent. of cases, it would be a defence in most cases. That would relieve decent editors, who have faced problems over the past year or so, of their difficulty. That would be good not only for the editors and their peace of mind, but for the health of free debate in this democracy of ours. If the Home Secretary believes in that free democracy—and I think he does—I hope that he will be prepared to reconsider the amendment, which is one of the most important that has been proposed in Committee.

Mr. Dykes

I do not know whether my right hon. Friend the Home Secretary will respond to that invitation. There are those among us who have sympathy with the Home Secretary and appreciate the underlying importance of the clause. We have a natural preoccupation with the genuine security interests of the nation, the British public and our armed forces. I freely acknowledge that I am tempted in that direction. I was disappointed, therefore, when the Home Secretary intervened to give his reaction. With respect, I do not think that he dealt with the points of anxiety raised by hon. Members, especially Conservative Members who support my right hon. Friend's amendment.

I am sure that my hon. Friend the Member for Wycombe (Mr. Whitney) will not mind my saying this, as he knows that I have great respect for him and for his experience in these matters, but I think that his examples added enormously to the Committee's confusion and that they were ill chosen. I was struck by the enigma that arises from his allusion to the mention in a German magazine of the MI5 chief. I believe that 70,000 people fly across the Atlantic every day. That sounds like an enormous number—something like 140 planes, each with 500 people on board. I imagine that about 5,000 people, mostly business people, come back from Germany to Britain each day. I could postulate that perhaps half of them, one way or another—either by speaking German or by having it drawn to their attention by somebody who spoke English, as a lot of people in Germany do—could come by this information. Half would be 2,500 people, and those people would then come back with the name of the head of MI5 and pass it on to friends at dinner parties. What would my right hon. Friend say in those circumstances? Would he say that too few people in Britain knew about this secret once they got back to Heathrow, or too many?

Mr. Whitney

My hon. Friend has given a figure of 2,500. I do not know the total readership of the Evening Standard—perhaps 1 million or 2 million—but what we are talking about is a risk growth of 2,500 to perhaps 1 or 2 million, and out of that number there might well be some crazy person who would say "If that man is the head of MI5 I will go and assassinate him." That is the danger. That is the public harm that is created.

Mr. Dykes

One always comes back to the conclusion that these things are being postulated—I refer to this clause without amendment—for the convenience of any given Administration, or its security branch, or the service chiefs, to prevent embarrassing things from being revealed, rather than for genuine, intrinsic national security. That is the conclusion one keeps coming to.

Mr. Hurd

That exchange between my two hon. Friends is interesting, because it is precisely the kind of exchange which, under the Bill, might take place between the prosecution and the defence. Is my hon. Friend so unhappy about his chances of success with that argument that he believes that he must win automatically without the case being heard at all? Why could the matter not be left to a jury?

Mr. Dykes

We are not dealing with espionage and the true breaches of security that are dealt with in part 1 of the Official Secrets Act. This is the ultimate absurdity of the "Spycatcher" example. I suppose that one could say there is a complete range, from the tiny little technical journal. I hope that my right hon. Friend was not suggesting that Literaturnaya Gazyeta was in that category, because, as it is a wide circulation newspaper in the Soviet Union, its editor would be most offended. I will not mention by name the tiny technical journals of the kind that I have in mind, because I might offend some trade association or other, but a tiny technical journal might publish something, and a newspaper with a large circulation might be the next publication to carry it.

Then at the other end of this range of absurdities—and most of the real-world examples will, of course, be within the range, is "Spycatcher". That is what most induces hon. Members in all parts of the House to insist on this amendment. At least I hope they will, unless we can get a further explanation or reaction from the Home Secretary to the offer that has been made by the right hon. Member for Blaenau Gwent (Mr. Foot). However, I do not think that that will be forthcoming tonight.

Inevitably we come back to the conclusion that the Government—and this is an anxiety that journalists have expressed already—would rather threaten the press with something that would be embarrassing than provide for something that is a genuine aspect of national security. I do not think that the case for not amending this clause can be based on vague suppositions about the efficiency or inefficiency of foreign intelligence services. It is all far too conjectural.

Let me give another theoretical example—and I hope that no one will misunderstand me. Hon. Members in all parts of the House condemn the growth in world terrorism and, indeed, in state or quasi-state terrorism. I will not mention any real-world examples, because I do not want to offend hon. Members, but what if we were imbued with the idea of a just cause for terrorist acts? At the moment, I do not myself particularly see them, although one can sometimes go back to historical acts or mistakes in particular countries, producing a terrorist reaction. We condemn the act itself, even if not the underlying causes.

What if there were manifestly an overwhelming conviction that the cause was a just one and either a foreign Government or the British Government—in this case, we are considering only a British Government—decided that they had to suppress all information because it was embarrassing in the context of their own policies and had nothing to do with state security? I wonder also whether we are grappling with the notion of a high hurdle or with the notion of a low hurdle. Was "Spycatcher" a high hurdle for the Government because of the absurd result, or was it originally deemed to be a low hurdle, and is that why hundreds of thousands of pounds were expended—

Mr. Richard Shepherd

Millions.

Mr. Dykes

Yes, millions.

—and in the end we had a laughable result? Is that the reason for the endless farce so far as the true arguments about state security and the true protection of the public are concerned?

We have had absurd examples from the past of the security services rampaging round London making fools of themselves. I am sad to say that, by definition, those people are not always stable in character and behaviour; they are often fanatical and strange. The nature of the activity attracts people like that. Covering up such activity in the past does not protect the present security of the country.

The Americans and the French also have a reputation for secrecy, but it is now much less than ours. The obsession with secrecy has grown extraordinarily in recent years in this country. No theoretical examples were available to those defending the existing text of the Bill, nor could my right hon. Friend the Home Secretary produce a conjectural reason why the existing clause should be supported. I can understand why. I am not criticising him, because I can see the dilemma that he was in.

Because the public interest debate was turned down by the Government—a great opportunity lost—we have a tragic result. My right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour) might accept textual adjustments to the wording which he has felicitously presented to the Committee. Without the public interest defence, the amendment is even more necessary. I hope that that is the conclusion of the Committee.

Mr. Rooker

There has been a presumption throughout the debate that the first disclosure is a minor disclosure. There have been constant references to the small circulation of technical magazines. One can think of many examples. The first disclosure may not be minor but if there is not a prosecution, the disclosure may be repeated and there may then be an attempted prosecution. Does the person who publishes the story the second time know that all the harm that could have been done was done the first time? Because there was no prosecution the first time, even though there was a small circulation, the person might think that he could repeat the story.

We were told in the White Paper that by and large people should know whether they would be liable to prosecution. A publication with a big circulation is not necessarily wrong in repeating a story that first appeared in a small paper. Action might not have been taken the first time but might be taken the second time because someone decides that harm is done the second time. Some people may wonder why there was not a prosecution the first time. That point should be addressed by the Home Secretary.

If these proceedings were not being guillotined, and if we were conducting the sort of scrutiny which we would in Standing Committee, and which it is the duty of the Chair to see that we do, I would ask a question which arises from an intervention by the Home Secretary. In response to the Home Secretary, the hon. Member for Harrow, East (Mr. Dykes) said that the MI5 person would not be covered because he would be dealt with by clause 1. Why is clause 5(6) in the Bill? I do not know. I should like an explanation. lf there is time for an explanation before the guillotine drops, we will be grateful, even though in asking the question I realise that I am out of order.

9.45 pm

Mr. Aitken

The Committee has had a very good and reflective debate. Although I was not entirely convinced, the Home Secretary's speech deployed a case which needs a serious answer. Ultimately, the clause involves a very fine balance which must have been recognised by the Government, as in 1979, under Lord Whitelaw, their Official Secrets Bill contained a prior publication defence. Although Lord Whitelaw is no great softy when it comes to freedom of the press and libertarian instincts, he put in the prior publication defence and my right hon. Friend the Home Secretary took it out. That demonstrates the fine distinction as to what is the right course.

It comes down to one question: in what sort of society do we want to live and have our freedom? My right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath) hit the nail on the head when he said that he felt that Britain today is the most secretive country in the free world. It has become so secret as a result of a large number of new pressures of which "Spycatcher" was perhaps the most spectacular example.

Of course my right hon. Friend the Home Secretary is right to deploy the thesis that there could be some risk from second publication. I should have been more convinced had he been able to give a single example from his imagination or his knowledge; nevertheless, the Committee should accept that possibility. However, one has to balance that risk against not whether we are prepared to take a risk, but whether we are prepared to have a law that will be an ass and ultimately will make the Government look silly. That is the area of choice.

Two different mentalities are involved. The Home Secretary, who sounded so reasonable, so sensible and so civilised, represents the Whitehall mentality. My right hon. Friend sprang from Whitehall and he still has more than a touch of the mandarin's mind in his politician's garments. That mandarin's mind really wants to keep the lid on as tight as possible. One can give numerous examples about how that mandarin's mind works. I remember vividly how Whitehall clamped D notices on British newspapers when George Blake was coming to trial. George Blake was a famous double agent. There was no question of anything being revealed by the British press which the Soviets did not already know. The Government were trying to suppress the truth from the people of Britain, not keep the lid on something that was a genuine security matter in respect of the Soviet Union.

I remember one moment during my own trial at the Old Bailey. A deputy secretary at the Foreign Office had some difficulty in explaining how the report on which the whole case turned could possibly be secret when every single fact had already been published. Perhaps the most embarrassing fact was that a Foreign Office official had actually written the report. In a rather memorable moment of cross-examination, the defence counsel asked the Foreign Office official if, when he gave a briefing on the report, he had to pretend that he was the hall porter or to wear a mask, since the only problem was that his identity had been revealed. The Foreign Office official paused for a long time before saying, "Well, it was very embarrassing, and embarrassment and security are not really two different things." That is the Whitehall mentality when it comes to suppressing information.

Let us suppose that we were in the United States and our debates were being televised. How staggered and stunned the American public would be to see a great democracy such as Great Britain solemnly arguing about imposing major suppressing devices and shackling the press and saying that if a secret has already been published it should be an offence for a second publication to take place. It would be totally against the United States Constitution, the Freedom of Information Act and the whole tradition of investigative journalism where reporters are not mere messenger boys, the lickspittles of the lobby, or the Ingham hallelujah chorus but real detectives of democracy. The whole ethos of American society is an open society.

Mr. Whitney

Before my hon. Friend leaves the subject of origins—he has referred to our right hon. Friend the Home Secretary and his Whitehall origins—does he agree that his own distinguished journalistic origins might have coloured his attitudes? As we look at this difficult issue, which, as my hon. Friend has said, is extremely finely balanced, his instincts stem from a journalistic approach, just as my right hon. Friend's instincts stem from the interests of the state. We accept that there is a difference, but there is nothing wrong with that. If there is an allegation of bias, there may also be motes in other people's eyes.

Mr. Aitken

I cheerfully plead guilty to the mote in my eye and to believing in openness and in the freedom of the press. I am not ashamed of that, any more than my hon. Friend should be ashamed of some of his origins which are cloaked in mystery.

The amendment comes down to the kind of society that we want to live in. There is nothing wrong with the concept that my hon. Friend the Member for Wycombe (Mr. Whitney) wants to personalize—perhaps I do, too. On the one hand, we have the openness and journalists' mentality—let us not forget that my right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour) was a most distinguished editor and newspaper owner in his day—and on the other hand we have the Whitehall mentality of the Treasury Bench.

As my right hon. Friend the Member for Old Bexley and Sidcup said, the Whitehall mentality has become gravely tarnished in the past few years as a result of excessively authoritarian behaviour by the Government of the day. Let us look at the "Spycatcher" affair and the way in which the Gibraltar press matters were handled. I am talking not about security matters but about the briefings that were put out about the Gibraltar affair. The Government have unclean hands when it comes to freedom versus authoritarianism. The ghost of Peter Wright stalks through the pages of the Bill. There is the absurdity of going after another Peter Wright, and being able to clobber him and, above all, letting the threat of prosecution dangle like an unpleasant sword of Damocles over the head of every editor, so that they will face enormous costs if they dare to take a risk on a second publication.

It is nonsense to spend vast sums of public money trying to chase after a horse that has already bolted and to slam a stable door that cannot be sensibly closed, unless one is in the vindictive and authoritarian frame of mind that the Government got into in the "Spycatcher" affair.

I remind hon. Members of Jefferson's famous phrase. He said that if he had to choose between a Government without newspapers or newspapers without a Government, he would choose the latter. I would choose the Bill without this clause, because it is a threat to newspapers which are still a healthy influence in our society.

Mr. Richard Shepherd

It is a rare privilege to follow my hon. Friend the Member for Thanet, South (Mr. Aitken) on a theme that is central to the issue. We are concerned—I willingly support my right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour) and the right hon. Member for Blaenau Gwent (Mr. Foot) and observe the points made by the former leader of my party—because the Bill is constructed in such a way as to reject any of the balances and contentions that a free society needs. It is allied to the Security Service Bill, which created several absolute offences. Even the construction of this Bill, with its absolute offences and low damage tests, creates a new offence in connection with publication.

Clause 6 prevents the repetition in the United Kingdom press of information leaked abroad by someone not subject to the Bill—for example, a foreign civil servant or an EEC official. We have pursued this matter, and my right hon. Friend the Home Secretary accepted it as far back as the White Paper. It was a narrow addition to the limitations on the press to publish, but it was a limitation. It is now graver and more serious. We have a portrayal of the Government's increasingly authoritarian attitude to the press. It is a genuine worry, and it is why we support the contention behind the amendment.

By the Home Secretary's hypothesis, they are matters which concern us, and we appreciate the fineness of the judgment in this area, but it is clear that he has constructed a Bill which does not provide the balance that our democracy needs. The prime purpose of a free press is to preserve public control over the men and measures of Government, to use a well-known expression.

The Home Secretary did not give an example where the second publication could cause harm. This is the creation of a new publishing offence. A newspaper may not publish, without the possibility of prosecution, information that has been leaked in Belgium or in Italy or information given by the British Government to one of those Governments. If it is published in one of those countries and is then published again in this country—currently, that is not an offence—it may be an offence under the Bill. The Home Secretary has acknowledged that, yet it remains in the Bill. That must mean that he is creating a new offence, and I still do not understand the necessity to create a new offence against the press.

This is the Wright trial all over again. One of our judges said in that instance: The Crown is only entitled to restrain the publication of intelligence information if such publication would be against the public interest"— we agree with that— as it normally will be if theretofore undisclosed. But if the matter sought to be published is no longer secret, there is unlikely to be any damage to the public interest. I quote that from Lord Brightman. I will not speak at length because I know that my right hon. Friend the Member for Chesham and Amersham wishes to address the Committee. The amendment is worthy of consideration.

Sir Ian Gilmour

I am surprised that the Home Secretary did not use the most obvious example of damage that could be done the second time round, which was the action in the "Spycatcher" trial. That caused damage because it spread a great deal of knowledge—I do not know how much of it was right; clearly a great deal of it was wrong—around the world. That was perhaps the best example that could have been given, but it was not employed.

I was not joking when I was said to be cavalier by some of my hon. Friends, who are perhaps themselves in danger of being pompous. I said that the amendment was designed to help the Government rather than the people of the nation because it would prevent cases such as "Spycatcher", a case which did great damage to the Government and the intelligence service. That is a serious point because if damage is to be done—which is extremely unlikely, apart from in that case—it will be done by bringing the case.

It has been said that none of my hon. Friends has been able to produce a serious example of how damage could be done the second time round. The Home Secretary did not do that either, although after being interrupted by the hon. Member for Caithness and Sutherland (Mr. Maclennan) he made an effort to do so.

Mr. Hurd

I spent some time explaining—as the hon. Member for Linlithgow (Mr. Dalyell) and the right hon. Member for Blaenau Gwent (Mr. Foot) acknowledged—how there was, in my view, quite a serious risk that, from a second disclosure, states which supported state terrorism or terrorist organisations might learn information which they badly needed about techniques, equipment or personnel involved in the counter-terrorist effort. It is true that I could not produce an actual past case, but it is not true to say, as has been said repeatedly, that I did not adduce dangers that could happen, because I did.

Sir Ian Gilmour

I thought my right hon. Friend's explanation on that came after the interruption by the hon. Member for Caithness and Sutherland, but I accept that it came earlier. I still do not see how that could happen. I cannot see how any newspaper in this country could behave in that way or how, if it did, it would be affected by the clause. To that extent, it is unreal.

However, we are aware that there are risks to the freedom of the press. It used to be thought that taking risks with the freedom of the press was just as bad as, or even worse than, taking risks with security. I do not believe that there is a risk, but if there is, it can be easily met by an amendment incorporating a provision dealing with counter-terrorism, which would stop the terroristic use of clause 5. It is clear that it could be used to intimidate the press, and that if left unamended clause 5 will intimidate and stop many things being published. It will mean the British press not learning things that the press of every other country will know.

If, on reflection, my right hon. Friend seriously believes that any newspaper would behave in the way that he described—

It being Ten o'clock, THE CHAIRMAN proceeded, pursuant to the order [13 February] and the resolution [15 February], to put forthwith the Question already proposed from the Chair.

Question put, That the amendment be made:—

The Committee divided: Ayes 97, Noes 247.

Division No. 99]	[10 pm
AYES
Abbott, Ms Diane	Fisher, Mark
Aitken, Jonathan	Flynn, Paul
Barnes, Harry (Derbyshire NE)	Foot, Rt Hon Michael
Battle, John	Foster, Derek
Beith, A. J.	Galloway, George
Benn, Rt Hon Tony	George, Bruce
Benyon, W.	Gilmour, Rt Hon Sir Ian
Bermingham, Gerald	Golding, Mrs Llin
Boateng, Paul	Gordon, Mildred
Boyes, Roland	Gorst, John
Bray, Dr Jeremy	Haynes, Frank
Brown, Gordon (D'mline E)	Heath, Rt Hon Edward
Buchan, Norman	Henderson, Doug
Buck, Sir Antony	Hinchliffe, David
Buckley, George J.	Holland, Stuart
Campbell, Menzies (Fife NE)	Hood, Jimmy
Campbell, Ron (Blyth Valley)	Howells, Geraint
Cartwright, John	Hughes, John (Coventry NE)
Clwyd, Mrs Ann	Johnston, Sir Russell
Cohen, Harry	Jones, leuan (Ynys Môn)
Cook, Robin (Livingston)	Kinnock, Rt Hon Neil
Corbett, Robin	Leighton, Ron
Crowther, Stan	Lestor, Joan (Eccles)
Dalyell, Tam	Livsey, Richard
Darling, Alistair	McAvoy, Thomas
Davies, Rt Hon Denzil (Llanelli)	McFall, John
Davis, Terry (B'ham Hodge H'l)	McKay, Allen (Barnsley West)
Dewar, Donald	Maclennan, Robert
Dixon, Don	McWilliam, John
Duffy, A. E. P.	Madden, Max
Dunnachie, Jimmy	Marek, Dr John
Dykes, Hugh	Martlew, Eric
Field, Frank (Birkenhead)	Meale, Alan

Michael, Alun	Soley, Clive
Murphy, Paul	Spearing, Nigel
Nellist, Dave	Steel, Rt Hon David
Pike, Peter L.	Taylor, Mrs Ann (Dewsbury)
Powell, Ray (Ogmore)	Taylor, Teddy (S'end E)
Prescott, John	Vaz, Keith
Randall, Stuart	Wall, Pat
Richardson, Jo	Walley, Joan
Robinson, Geoffrey	Welsh, Andrew (Angus E)
Rooker, Jeff	Welsh, Michael (Doncaster N)
Rost, Peter	Winnick, David
Ruddock, Joan	Wise, Mrs Audrey
Sedgemore, Brian	Wray, Jimmy
Shepherd, Richard (Aldridge)
Skinner, Dennis	Tellers for the Ayes:
Smith, Andrew (Oxford E)	Mr. Frank Cook and
Smith, C. (Isl'ton & F'bury)	Mr. Robert N. Wareing.
Snape, Peter

NOES
Adley, Robert	Emery, Sir Peter
Alexander, Richard	Evans, David (Welwyn Hatf'd)
Amess, David	Evennett, David
Amos, Alan	Fairbairn, Sir Nicholas
Arbuthnot, James	Fallon, Michael
Arnold, Jacques (Gravesham)	Favell, Tony
Arnold, Tom (Hazel Grove)	Fenner, Dame Peggy
Aspinwall, Jack	Field, Barry (Isle of Wight)
Atkinson, David	Finsberg, Sir Geoffrey
Baker, Nicholas (Dorset N)	Fishburn, John Dudley
Baldry, Tony	Fookes, Dame Janet
Banks, Robert (Harrogate)	Forsyth, Michael (Stirling)
Beggs, Roy	Forth, Eric
Bellingham, Henry	Fowler, Rt Hon Norman
Bendall, Vivian	Fox, Sir Marcus
Bennett, Nicholas (Pembroke)	Franks, Cecil
Bevan, David Gilroy	Freeman, Roger
Blackburn, Dr John G.	French, Douglas
Blaker, Rt Hon Sir Peter	Gale, Roger
Bonsor, Sir Nicholas	Gill, Christopher
Boscawen, Hon Robert	Glyn, Dr Alan
Boswell, Tim	Goodson-Wickes, Dr Charles
Bottomley, Peter	Gow, Ian
Bottomley, Mrs Virginia	Gower, Sir Raymond
Bowden, A (Brighton K'pto'n)	Grant, Sir Anthony (CambsSW)
Bowden, Gerald (Dulwich)	Greenway, Harry (Ealing N)
Bowis, John	Gregory, Conal
Boyson, Rt Hon Dr Sir Rhodes	Griffiths, Sir Eldon (Bury St E')
Brandon-Bravo, Martin	Griffiths, Peter (Portsmouth N)
Brazier, Julian	Ground, Patrick
Bright, Graham	Gummer, Rt Hon John Selwyn
Brown, Michael (Brigg & Cl't's)	Hamilton, Neil (Tatton)
Browne, John (Winchester)	Hampson, Dr Keith
Bruce, Ian (Dorset South)	Hanley, Jeremy
Burns, Simon	Hargreaves, A. (B'ham H'll Gr')
Burt, Alistair	Hargreaves, Ken (Hyndburn)
Butcher, John	Harris, David
Butler, Chris	Haselhurst, Alan
Butterfill, John	Hayward, Robert
Carlisle, John, (Luton N)	Heathcoat-Amory, David
Carlisle, Kenneth (Lincoln)	Heseltine, Rt Hon Michael
Carrington, Matthew	Hicks, Mrs Maureen (Wolv' NE)
Carttiss, Michael	Higgins, Rt Hon Terence L.
Cash, William	Hind, Kenneth
Chalker, Rt Hon Mrs Lynda	Hogg, Hon Douglas (Gr'th'm)
Chope, Christopher	Holt, Richard
Clarke, Rt Hon K. (Rushcliffe)	Hordern, Sir Peter
Colvin, Michael	Howard, Michael
Coombs, Anthony (Wyre F'rest)	Howarth, Alan (Strat'd-on-A)
Coombs, Simon (Swindon)	Howarth, G. (Cannock & B'wd)
Cope, Rt Hon John	Howell, Ralph (North Norfolk)
Couchman, James	Hughes, Robert G. (Harrow W)
Cran, James	Hunt, David (Wirral W)
Currie, Mrs Edwina	Hunt, John (Ravensbourne)
Davies, Q. (Stamf'd & Spald'g)	Hunter, Andrew
Davis, David (Boothferry)	Hurd, Rt Hon Douglas
Day, Stephen	Irvine, Michael
Devlin, Tim	Jack, Michael
Dorrell, Stephen	Jackson, Robert
Eggar, Tim	Janman, Tim

Jessel, Toby	Mayhew, Rt Hon Sir Patrick
Johnson Smith, Sir Geoffrey	Meyer, Sir Anthony
Jones, Robert B (Herts W)	Miller, Sir Hal
Key, Robert	Mitchell, Andrew (Gedling)
King, Roger (B'ham N'thfield)	Molyneaux, Rt Hon James
King, Rt Hon Tom (Bridgwater)	Monro, Sir Hector
Kirkhope, Timothy	Moore, Rt Hon John
Knapman, Roger	Moss, Malcolm
Knight, Greg (Derby North)	Moynihan, Hon Colin
Knight, Dame Jill (Edgbaston)	Mudd, David
Knox, David	Nelson, Anthony
Lang, Ian	Neubert, Michael
Latham, Michael	Newton, Rt Hon Tony
Lawrence, Ivan	Nicholls, Patrick
Leigh, Edward (Gainsbor'gh)	Nicholson, David (Taunton)
Lester, Jim (Broxtowe)	Nicholson, Emma (Devon West)
Lilley, Peter	Norris, Steve
Lloyd, Peter (Fareham)	Onslow, Rt Hon Cranley
Lord, Michael	Oppenheim, Phillip
McCrindle, Robert	Paice, James
Macfarlane, Sir Neil	Patnick, Irvine
MacKay, Andrew (E Berkshire)	Patten, John (Oxford W)
Maclean, David	Pattie, Rt Hon Sir Geoffrey
McLoughlin, Patrick	Pawsey, James
McNair-Wilson, Sir Michael	Peacock, Mrs Elizabeth
McNair-Wilson, P. (New Forest)	Porter, David (Waveney)
Major, Rt Hon John	Portillo, Michael
Malins, Humfrey	Powell, William (Corby)
Maples, John	Price, Sir David
Marland, Paul	Raffan, Keith
Marlow, Tony	Raison, Rt Hon Timothy
Martin, David (Portsmouth S)	Rathbone, Tim
Maude, Hon Francis	Redwood, John
Mawhinney, Dr Brian	Riddick, Graham
Maxwell-Hyslop, Robin	Ridsdale, Sir Julian

Rowe, Andrew	Thurnham, Peter
Rumbold, Mrs Angela	Townend, John (Bridlington)
Ryder, Richard	Tracey, Richard
Sackville, Hon Tom	Tredinnick, David
Sayeed, Jonathan	Trippier, David
Scott, Nicholas	Trotter, Neville
Shaw, David (Dover)	Twinn, Dr Ian
Shaw, Sir Giles (Pudsey)	Viggers, Peter
Shaw, Sir Michael (Scarb')	Waddington, Rt Hon David
Shelton, Sir William	Waller, Gary
Shephard, Mrs G. (Norfolk SW)	Wardle, Charles (Bexhill)
Sims, Roger	Watts, John
Skeet, Sir Trevor	Wells, Bowen
Smith, Tim (Beaconsfield)	Wheeler, John
Soames, Hon Nicholas	Whitney, Ray
Speller, Tony	Widdecombe, Ann
Spicer, Sir Jim (Dorset W)	Wiggin, Jerry
Spicer, Michael (S Worcs)	Wilkinson, John
Stanley, Rt Hon Sir John	Wilshire, David
Steen, Anthony	Winterton, Mrs Ann
Stevens, Lewis	Winterton, Nicholas
Stewart, Andy (Sherwood)	Wolfson, Mark
Stokes, Sir John	Wood, Timothy
Stradling Thomas, Sir John	Woodcock, Mike
Summerson, Hugo	Yeo, Tim
Tapsell, Sir Peter	Young, Sir George (Acton)
Taylor, Ian (Esher)
Taylor, John M (Solihull)	Tellers for the Noes:
Tebbit, Rt Hon Norman	Mr. Tony Durant and
Temple-Morris, Peter	Mr. David Lightbown.
Thompson, D. (Calder Valley)

Question accordingly negatived.

Clause 5 ordered to stand part of the Bill.