SAFEGUARDING OF INFORMATION

HC Deb 16 February 1989 vol 147 cc603-9

Mr. Richard Shepherd

I beg to move amendment No. 40, in page 8, line 8, leave out 'fails to comply with' and insert 'retains it after receiving'.

This amendment is more by way of inquiry and to provide more background. The amendment is intended to meet the possibility of someone who improperly receives information and destroys it and therefore is not able to return it. We are all mindful that there have been several newspaper instances and I will not base my arguments on them. However, what happens if the information has been destroyed and cannot be returned and the person cannot confirm to the satisfaction of the authorities that it has been destroyed? I want clarification on that.

Mr. Foot

Although the hon. Member for Aldridge-Brownhills (Mr. Shepherd) has introduced his amendment as if it were a minor amendment, it has many implications and it touches on other clauses which we should have the opportunity to discuss.

I accept that problems arise with the guillotine and I have some sympathy with the hon. Member for Caithness and Sutherland (Mr. Maclennan). The Minister's difficulties arise through the operation of the guillotine. I am sure that if it had not been for the operation of the guillotine, the Minister would not have given such a clumsy answer to one of his colleagues who was seeking a reassurance about the concession made by the Home Secretary. We have all sat through two consecutive days' debates on the Bill and if it had not been so late at night I am sure that the Minister would have leapt to his feet and accepted the need for an amendment which the Home Secretary agreed and there would have been no trouble on that score.

The right hon. Member for Worthing (Mr. Higgins) also put forward very serious arguments, and in a proper Committee stage without a guillotine the Minister would have had a chance to consider what had been said before the debate on clause stand part. But the possibility of any debate on clause stand part has been removed, which makes consideration of the Bill much more difficult.

Thanks to the way in which the guillotine has fallen, and thanks to its crude operation, we have not discussed clause 7 at all. Clause 7, however, touches on amendment No. 40, which tries to remedy the position, although whether it could do so is very doubtful. Although clauses 7 and 8, like clause 6, have wider aims—wider, indeed, than some of us had previously understood the Bill to comprise—they try in part to deal with those who have authority to use information that they obtained as Ministers, specifying how they must gain the authorisation. They would have to comply not only with clause 8 and the appropriate amendments, but with clause 7 as well.

It is clear from even a rough reading of the two clauses that if they had been in operation over the past 30 or 40 years far and away the worst offender against them would have been Sir Winston Churchill. No one has ever carted away documents from No. 10 Downing street—or wherever else he had been—on such a huge scale. That was very much to the benefit of the reading public, and, I would think, to the national interest as well. It certainly benefited the gaiety of nations for Sir Winston to be able to take away such huge quantities of documents and to use them as he did between 1945 and 1951. I was in the House at the time, and I may say that Sir Winston was much better employed in writing his memoirs than he was in conducting the opposition here—although he managed to perform the two tasks at the same time.

Let us suppose that Sir Winston had had to go through the details of each of those documents and to obtain authorisation in each case. Let us suppose that he had been told that if he did not do it properly he would be had up. I assure the House that I am not exaggerating. Winston Churchill thought that the state belonged to him, in a sense—that the state owed him a living. To some extent it did, because his services had been so great. Incidentally, this characteristic ran in the family: it dates back to the days of the Duke of Marlborough, who also did some services to the country and who carted away huge quantities of state documents, long before such nonsense as this was laid before the House of Commons.

It is a question of some interest and importance how the legislation will apply to, for instance, Ministers writing their memoirs. There has been quite a lot of controversy in the newspapers about that recently. Until a few years ago there was an absolute provision that if Ministers did not go to the head of the Cabinet—whoever that might be—in the proper way and obtain permission, they would be infringing the rules laid down by the Cabinet Office.

Of course, it was never exactly clear how the Official Secrets Act applied to such operations. In a sense, the matter was covered by authorisation of some form being given. I suppose that what would be claimed about clause 7—which we are not allowed to discuss under the guillotine—is that the form of authorisation is stated and touched upon in clause 8. Here again, the Committee should look at these matters properly, have the chance to examine them and the chance to put up amendments to the Government, on which the Government could make their replies. That is how legislation of this kind should be carried through. But it is the Government's decision that we are not allowed to discuss clause 7 in detail—or in any sense. Perhaps people would like to read it all. I do not know if I would be in order to read it out now—I should think that I would be. Anybody who reads it will see that it is trying to deal with this subject, although it has been excluded from our discussions. It is partly governed by clause 8.

The hon. Member for Aldridge-Brownhills has sought to have an amendment accepted that could be some protection, but it is not sufficient protection. That emphasises how wrong it is for the Committee to be forced to discuss such matters with no possibility for further amendments at such a late stage.

11.45 pm

Mr. Gorst

Listening to the right hon. Gentleman has made me reflect. I wonder whether he is able to answer my rhetorical question. We have about 15 minutes, in which the Minister may also be able to reply, before we finish the Committee stage. Has the right hon. Gentleman wondered whether it would be appropriate, in view of all the uncertainty about what might be regarded as classified information that could be used without damage, and the reverse, for there to be machinery available so that newspapers could ring someone up and say, "Can we use this information? Is it classified?"? Perhaps we should have a whole Ministry to deal with the subject.

Mr. Foot

That might be one way of dealing with the matter. There was a question raised when somebody was arguing about the operation of the Official Secrets Act 1911 only a few months ago. An editor asked a Minister, "How should we deal with such a question?" The reply was, "Ring up No. 10 and see whether you can publish". Some of the other journalists did not think that that was the most sensible or liberal way to deal with the question.

I do not intend any mockery of the Minister when I say that on this, as on previous occasions, he has stood up to the blast of argument as well as he is able in the circumstances. But he should agree that it is a bad way to conduct legislation of this nature in the House of that Commons. If we consider the debate on the amendment or the debate on clause 6 and the position of journalists, what should have happened is what would have happened in the case of any other interests outside the House. There was a chance for the Minister to go to the editors, the Newspaper Publishers Association or even the National Union of Journalists. Of course, it is terrible to suggest to the Government that they should ever have discussions with the people who do the work. That is an outrageous proposition, which the Minister would throw out of the window immediately.

But let us consider the Newspaper Publishers Association, the Guild of British Newspaper Editors or the people who have professional qualifications in these matters. We are introducing a maze of new regulations through which they will have to steer if they are to do what they see as their duty to publish what they are entitled to publish and what the British people should be able to read. Why were the people who will have to operate the legislation not consulted? If it had been the farmers, there would have been plenty of consultation. If other people had been involved, there would have been consultation. But I do not think that there has been any consultation with the people in the newspaper business, who will have to operate these rules. If there was any such consultation, the results of it have not been translated into the Bill.

We have not much time left on the Bill and it is a great pity that such a Bill should be put through the House of Commons in such a way. That is not an attack on the Minister, or the Home Secretary, alone. As I said in a previous debate, I have listened carefully to what he and others have had to say on specific clauses. They have made a much better case on some clauses than on others, but on some they have hardly made a case at all.

Mr. Bermingham

Has my right hon. Friend considered the problems that might arise in respect of a communication that is purely oral? How does one comply with a request for the return of an oral communication or prove that one has disposed of a piece of information conveyed orally?

Mr. Foot

The Government have not even caught up with the telephone, let alone with the other modern inventions, which are beyond me. They do not seem to know that journalists use that extraordinary modern instrument.

The clauses need to be properly examined, and that is what a proper Committee stage would have achieved. Instead, we have had an absolute travesty of a Committee stage. These clauses are not as important as the preceding clauses, but they are just as badly drafted and are just as likely to give rise to future difficulties. Hon. Members say, "The House of Lords had better come to our rescue." I have never been very much in favour of the House of Lords coming to our rescue. I think that the House of Commons should do its duty, but as the Government have denied us the right to do our duty, I hope that others will look very carefully at clauses 6, 7 and 8, which we have had not the slightest chance of examining in any proper detail.

Mr. Randall

I shall be very brief, as we have only a few minutes left because of this awful guillotine.

I should like to make a suggestion about amendment No. 40, which refers to a person's being guilty of an offence if he fails to comply with an official direction for the return or disposal of documentation. I believe that the direction says that a person must not retain a document after receiving the official direction. Essentially the official direction will be a piece of paper saying, "Mr. Smith. Reference XYZ. Please return or destroy the information by 10 o'clock on such and such a date." It would be a very simple thing. I am appealing for simplification.

I think that the amendment would make matters clearer. We are constantly told that legal language is too difficult for people to understand and that we should create laws that people can comprehend. The amendment would be an improvement. It would be better to link the guilt with a person's retaining information after receiving an official direction rather than his failure to comply with an official direction. I shall leave it to the Minister to see what we can do about that.

The proposal is a good one, which would improve the Bill, and we can use this opportunity to see whether the Minister is his own man. I am referring not only to the hon. Gentleman but to the Home Secretary when I say that very little has been given away during our proceedings. The Bill has hardly been changed at all. We have just about squeaked a Report stage. This is a sad occasion. As a result of the Bill, the Government have got themselves a bad reputation even among their own supporters. I refer the House to the article in The Guardian today which said that the Bill is highly restrictive.

Mr. Bermingham

Even allowing for the amendment in its current terms if the information is oral, as leaked information very often is, can my hon. Friend perhaps give the Minister some advice, if the Minister is prepared to listen, as to how one disposes of it? How could one prove that one had got rid of it or that one had forgotten it? [Interruption.] If the hon. Member for Derby, North (Mr. Knight) wants to make a pertinent comment it would be awfully nice if he had the good manners and courtesy to get to his feet and say so. But let us leave that aside.

The fact is that the information is not just in documentary form. It does not come that way; it very often comes in oral form. How does this clause deal with oral information? It is nonsensical that the Minister has failed to address this point, and it is nonsensical that the Bill does not deal with it.

Mr. Randall

My hon. Friend has raised a very interesting question. I refer him to clause 8(4), which refers to any person who has in his possession or under his control any document or article". On the question of what happens after oral disclosure takes place, I still say that, instead of reading "Resist, resist, resist" from the briefs provided by the Department, the Minister ought to concede this point. That would make this a very special occasion, bearing mind the fact that we are in the last few minutes of the Committee stage. The Minister would be improving the legislation and making it easier to read. It would be a worthwhile thing to do. Indeed, it would enhance the Minister's political virility. He would be his own man. He would actually be making a decision at the Dispatch Box, and that would enhance his position. We are giving him a great chance to end the Committee stage with a big bang by actually accepting an amendment.

Mr. John Patten

What an extraordinary set of statements from the hon. Member for Kingston upon Hull, West (Mr. Randall), who just wandered into the Committee, for the first time, towards the end of the day and picked up the brief, presumably because his hon. and right hon. Friends had exhausted themselves by their exertions.

Mr. Whitney

Where is the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley)?

Mr. Patten

My hon. Friend the Member for Wycombe (Mr. Whitney) asks, "Where is the right hon. Member for Birmingham, Sparkbrook?" I am afraid I have not set eyes on him since 7.15 pm.

The right hon. Member for Blaenau Gwent (Mr. Foot) said that it was extremely important that when we looked at issues that could affect the media and journalism in this country, we should consult. In fact, we did have a number of consultations. The right hon. Gentleman mentioned the Guild of British Newspaper Editors. Well, respresentatives of that organisation came to see me on more than one occasion to discuss a number of these issues. Indeed, some of the changes that were made between the White Paper stage and the Bill stage—I refer to the crime category, with which clause 4 deals—reflect, to a certain extent, arguments that were put forward by those people, and my right hon. Friend and I have told them so on a number of occasions.

Mr. Greg Knight

Will my hon. Friend give way?

Mr. Patten

I must finish this reply in the two minutes that I have left.

My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) put forward an innocent-sounding argument. He asked what would happen to an unfortunate person who had been given a bit of confidential information. Of course, under the Bill it is not an offence to receive information, as is also the case under section 2 of the Official Secrets Act. My hon. Friend talked about such a person, rather than giving the information back, shoving it in the fire or mincing it up. Presumably such a person would have no difficulty at all in proving to the authorities what he had done. The unfortunate side effect of my hon. Friend's amendment—and I am sure he did not intend this—is that it would allow people to destroy information, to destroy documents, to destroy articles, not belonging to them, and to prevent those who had committed a criminal offence from being identified.

What we are dealing with are not trivial papers but articles that could put lives in danger or threaten the security of the country. We could be talking about papers that refer to the design of a weapon or about a computer disk, which is an article, containing the names of security and intelligence service personnel. Are we really to say that once such a document or article is out of official hands it can never be recovered? I am sure that my hon. Friend the Member for Aldridge-Brownhills did not intend that to be the case—

It being Twelve 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.

Amendment negatived.

THE CHAIRMAN then proceeded, pursuant to the order [13 February] and the resolution [15 February], to put forthwith the Questions necessary for the disposal of the business to be concluded at Twelve o'clock.

Clauses 8 to 16 ordered to stand part of the Bill.

Schedule 1 agreed to.