PUBLIC INTEREST DEFENCE

HC Deb 22 February 1989 vol 147 cc1036-50

'.—(1) It shall be a defence for a person charged with a offence under this Act to prove that the disclosure or retention of the information, document or other article was in the public interest insofar as he has reasonable cause to believe that it indicated the existence of crime, fraud, abuse of authority, neglect in the performance of official duty or other serious misconduct.

(2) In the case of a Crown servant or government contractor charged with an offence under sections 1,2,3,4,6, or 8 of this Act, subsection (1) above shall only apply if he has taken reasonable steps to comply with any established procedures for drawing such misconduct to the attention of the appropriate authorities without effect.'.—[Mr. Corbett.]

Brought up, and read the First time.

Mr. Corbett

I beg to move, That the clause be read a Second time.

Mr. Speaker

With this it will be convenient to discuss the following:

Amendment No. 8, in page 3, line 36 at end insert 'but a disclosure which indicates the existence of a serious threat to the health or safety of the public shall not be regarded as damaging for the purposes of that subsection.'. Government amendment No. 1.

Mr Corbett

This clause is not about spies and espionage, but about public servants who, through their duties, find that the public are being misled or worse. It is also about editors and journalists who, in a free society, have a duty to expose official malpractice. The new clause tries to meet the Home Secretary's ludicrous claim that a public interest defence is somehow a "trump card". Under new clause 2 public interest would be a defence—not the trump card, but one of many in the pack—to put before court, but not the overriding defence claimed by the Minister of State in his letter to The Independent today.

The public interest defence could be used only in limited cases where there were allegations of specified types of misconduct. It is not a green light to every whistleblower in Whitehall. There would be no protection, for example, for someone who wanted to argue that Britain's nuclear weapons were against the real public interest. There would have to be "reasonable cause", demonstrated in court, to believe that serious misconduct was taking place. It would not be enough for someone to say "I think that it is happening." The evidence would have to be strong enough to persuade a jury.

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Another test of the defence is that the misconduct would have to be serious enough to justify disclosure in the public interest in the categories listed: crime, fraud, abuse of authority, neglect in the performance of official duty or other serious misconduct … a serious threat to the health or safety of the public. The Minister should note that the new clause and amendment No. 8 do not cover the work of the security or intelligence services, the armed forces or any other matters touching the vital interests of the nation.

There is yet another test—I am beginning to sound like the Home Secretary and his hurdles—in that a civil servant could invoke the public interest defence only if he or she had first tried to get the problem dealt with internally, but without success. That touches on the point made by the right hon. Member for Old Bexley and Sidcup (Mr. Heath) who spoke of the public right to know not simply about the wrongdoing, but that the wrongdoing had taken place and had been stopped. I stress that the public interest defence would not benefit anyone whose real purpose was to embarrass the Government and who leaked information without first invoking the available procedures.

The existence of internal Civil Service remedies—the right to complain to the head of the Civil Service—does not remove the need for a public interest defence in the limited form proposed by the new clause. The public interest defence would operate only after reasonable efforts to deal with the problem internally had failed. I stress that that defence is not available to journalists and to other non-civil servants.

Amendment No. 8 relates to the key element of the offence outlined in clause 3—that the offence does not depend on the nature of the information disclosed. That is irrelevant. Again it raised the possible prospect of the Government acting against a newspaper which planned to publish something that was simply embarrassing to the Government. In matters of public safety, such as health or a leak from Sellafield, the Government may decide that they do not want to inform the public immediately although clearly it would be in the public interest that the information should be made public speedily. Yesterday's debate about the dangers arising from salmonella and listeria illustrates the need for such information to be public.

I shall not develop my argument further because of the timetable, but the Home Secretary should consider carefully this narrower, more restricted public interest defence, which seeks to meet many of his main objections. These are modest amendments and would cause the Government no harm if accepted. The Government could still prosecute. All that would happen is that in a narrow band of specified areas a proper public interest defence would be available.

I hope that the Home Secretary will either accept the new clause or undertake to consider the issue when the Bill goes to another place, where we all hope that it will be subject to better scrutiny than the Government have allowed us here.

Mr. Richard Shepherd

This is an important new clause and we touched upon it in some length the other day. The contention is that should a crime, a fraud or an iniquity happen in Government, as the last resort—not the first resort—the aggrieved civil servant may release himself of the burden into the public domain.

This matter has been dealt with by the courts up to the House of Lords where Lord Griffiths conceded that, although he found it extremely difficult to envisage the circumstances where such a complainant had not been dealt with or satisfied internally, in the last instance it was his duty to alert—I believe that that was the word he used—the public to the impending danger.

Throughout the debate on the public defence, the Government have argued that there is no such concept in law. When confronted with the possibility of using the Obscene Publications Act, they told us that that legislation is really defective and should be amended or repealed. They ignored the fact that the very first Official Secrets Act of 1889 included a public interest defence, which was felt to be such an important legal matter involving the freedoms and rights of citizens as well as the protection of Government information that it required the distinction of the Attorney-General moving a Government amendment.

The Government have asserted the proposition that the internal structures of government are so secure and certain that there can never be a failure to remedy crime, fraud or iniquity. That proposition is profoundly distasteful to the House. Only last week, during our debate about prior publication, the Home Secretary drew our attention to hypothesis. Could we not hypothesise circumstances in which a Government do not enable legitimate existence of fraud or crime to be remedied internally? The amendment seeks to clarify what would happen to the civil servant.

It is really a last-ditch amendment because the Government have rejected almost every other attempt to give balance to the Bill. Had there been a serious injury, it would have been possible to argue whether the injury was serious and that would provide the opportunity for a defence. However, the damage tests consistently have been set at such a trivial level that it is difficult for a defence to secure freedom on those bases. The amendment seeks to avoid the possibility of having to rely on a perverse jury which does not understand the issues, because in the case of an absolute offence it is not necessary ever to reveal what has caused the offence. Under clause 1, if a civil servant has revealed a piece of information, he has to plead whether or not he revealed the information, but there is no opportunity for the jury to examine the merits of the information that he revealed. Unless the jury is perverse, it appears that an automatic conviction would follow.

The amendment challenges the central proposition in the Bill. The Bill claims that the public or national interest is synonymous with the interests of the Government of the day.

Mr. Hurd

Not at all.

Mr. Shepherd

My right hon. Friend the Home Secretary says, "Not at all", but the Bill asserts that the absolute offence applies to any piece of information revealed. Therefore, the determinant of whether it should apply are the Government. They hold to themselves that judgment. The House is in conflict with the assertion in the Bill that the national interest is synonymous with the interests of the Government of the day, as that is unacceptable in a free, liberal democracy. We are trying to repudiate that assertion. We accept that there may be times when the two are synonymous, but there are also times when that manifestly is not true.

I urge my right hon. Friend the Home Secretary to try to give some good wind to the Bill, which has limped so badly through the House, and which will go to the House of Lords in an almost contaminated form and to show that the Government's spirit is more generous in these issues. It is the interest of accountable government and responsible Ministers that they tolerate the access of the citizen to information that gives evidence of crime, fraud or iniquity that has not been revealed or resolved by internal procedures.

Mr. Rooker

The Government, in defending their rejection of new clause 2, must tell us what a civil servant should do when crime, fraud or abuse of authority occurs within Government. I accept that the Secretary of State will say that the Bill frees greater areas of the Government machine and that revealing such informatin will not be a criminal offence.

In issues such as defence procurement, the security of the state is a borderline matter, but vast amounts of public money are spent. Committees in the House have heard that tens of millions of pounds of public money have been wasted because of the operation of the equipment that is purchased, or because of the companies and contractors that supply such equipment double-charging and fiddling on the maintenance. Those issues involve crime and fraud in the normal sense. If civil servants try to follow procedures to bring such matters into the open, surely there must be a defence, or do the Government argue that there is never crime or fraud within the Government machine? That argument does not stand up. Over the years, the House has heard evidence of instances where Government contractors have been hand in glove with those they should not be, or fiddling the taxpayer. That is crude ordinary crime and fraud, not the crime that we discussed earlier involving spies and spooks. Everyone knows what I mean by the crimes that we are discussing here.

How can it be that civil servants who are aware of such crime and trying to put matters right—but failing to do so—are not able to say that it was in the public interest that the information relating to the crime or fraud ought to be made public and therefore they used the public interest defence? The Home Secretary should be a little more forthcoming about the Government machinery dealing with cases involving civil servants than he was during the very short debate in Committee.

Mr. Aitken

I shall say a few brief words about amendment No. 8 which seeks to exclude safety matters from the scope of clause 3. I also wish to express some reservations about Government amendment No. 1.

Amendment No. 8 seeks to do no more than protect our own citizens from being blocked from an alert when some foreign Government may be warning our Government about a major safety problem. Clause 3 deals with two types of disclosure—information about international relations and information supplied in confidence by another Government or international organisation. An offence is committed if disclosure is likely to jeopardise the United Kingdom abroad.

A foreign Government might easily reveal all sorts of important safety information. They might tell us that food exports from that country were suspected of containing food poisoning, or that their national airline or shipping fleet was a possible channel for smallpox or rabies. In my part of Kent, some people fear that the Channel tunnel might be a possible conduit for rabies, and if such information were passed in confidence from the French Government to our Government our people would have the right to know about it. Under clause 3 as drafted, anyone could be prevented from revealing such vital safety information. Without labouring the point unduly, I feel strongly that the huge definition in clause 3 should be qualified by allowing whistleblowing in the interests of public safety and health.

Government amendment No. 1 enlarges the already broad definition of damage in clause 3. Connoisseurs of the rift between the Secretary of State and the Minister of State may have noticed an interesting letter from the Minister of State the hon. Member for Oxford, West and Abingdon (Mr. Patten) in this morning's edition of The Independent, effectively saying that the Bill contained good safeguards, including the fact that one could be prosecuted only if one had disclosed something which had caused unacceptable damage to the national interest. My right hon. Friend the Home Secretary has been writing gaily in The Daily Telegraph about how "serious damage" is still contained in the Bill. That is a point on which I crossed swords with him in today's correspondence columns of The Daily Telegraph. Government amendment No. 1 does not just jettison the words "serious damage" or "unacceptable damage" but enlarges "damage" still further by saying that something can be damaging by the mere fact that it is confidential. What is "confidential"? As I understand it, a Government document or overseas document becomes confidential as soon as that word is stamped on it. This is an unacceptable enlargement. We all know that civil servants in particular, no doubt foreign civil servants as much as anybody, overclassify and stamp matters as confidential when they are not. Therefore, subject to what my right hon. Friend has to say in explaining the Government amendment, I have grave reservations about it.

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Mr. Kenneth Hind (Lancashire, West)

I wish to express my doubts about new clause 2. The House has heard the arguments about a public interest defence and I do not propose to repeat them. However, we have decided that secret service officers or those who are notified are pledged to a life in which they do not reveal matters relating to their work, and the new clause drives a coach and horses through that provision. The Security Service Bill contains adequate internal mechanisms for their complaints.

We have to deal with the harm test in relation to all civil servants, who are not notified. That is what the hon. Member for Birmingham, Erdington (Mr. Corbett) was driving at. The harm test still applies to all those people. If they wish, they can make disclosures, providing they are not harmful to the national interest. We have said time and again that disclosures can be made to other Crown servants, including the police and Members of Parliament, provided the Members of Parliament use that information responsibly and pursue it through the proper channels or, if they feel that it is sufficiently important, they can use the privileges of the House.

he real danger in the clause is that there is no consideration of the damage that can be done to the national interest. The person disclosing the information may think that it would be in the public interest. However, although that person may be honest, he may be misguided and may feel that he has reasonable cause to believe that it indicated the existence of crime, fraud, abuse of authority, neglect in the performance of official duty or other serious misconduct. What if that is not so? We are left with untold damage done to the national interest by somebody who acted in good faith when there were clearly other ways of dealing with the matter.

There are adequate safeguards in the Bill due to the harm test. We must not underestimate the importance of the harm test as a defence that can be used by civil servants who are aware of information such as that to which the hon. Member for Erdington referred.

Mr. Gorst

The presumption that lies behind much of what my hon. Friend and others have been saying is that one is concerned with abuses and wrongdoing. That is not necessarily the case when we are dealing with health and safety. I instance the continual outbreaks of Legionnaire's disease or perhaps some other health hazard which has not yet been explored. It may be that, in such circumstances, what is in the public interest is not the revelation of the information so much as the revelation of the procedure which requires reform. We all know that bureaucracies are resistant to changing their methods. It may be that public debate is necessary. I foresee that Governments may wish to suppress that. How would my hon. Friend answer that?

Mr. Hind

My hon. Friend forgets that the Bill is a major liberalising measure—[Laughter.] Hon. Members may laugh but they seem to forget that only five categories are covered by the Bill. All other Government matters are now free from prosecution under the criminal law.

On health and safety, the harm test would apply only if something had been disclosed under confidential circumstances by an overseas power. If someone makes a disclosure, he is able to argue in the courts that the disclosure of information affecting health and safety did no harm to the national interest. That is a defence open to him. In assessing whether the prosecution should be brought, the Attorney-General would look at all those factors before making his decision.

The new clause will drive a coach and horses through the spirit of the Bill. It undermines the principle behind it—the harm test. I urge my right hon. and hon. Friends to reject it.

Mr. Hurd

The Opposition, with customary support from some of my hon. Friends, have made a second attempt to produce a public interest defence clause. I acknowledge that it is a narrower clause than before. In unrestricted time we spent an entire Committee session on that principle. The hon. Member for Birmingham, Erdington (Mr. Corbett) was brief and I can be brief, too. However, this is a useful debate because it enables us to encapsulate the main principle involved. The hon. Member for Erdington has done that and so have my hon. Friends.

There is no overarching right of public prosecution in the Bill. The discretion, which now rests with the prosecuting authorities over a huge area, is removed from the bulk of that area and whittled down in almost all the remainder. There is no overarching right of public prosecution in order to protect some vague concept of public interest, let alone to save the Government from a red face. Those are the major changes in the Bill.

Mr. Aitken

I know that it is part of my right hon. Friend's great thesis that the Bill is a liberalising measure and that the discretion of the prosecutors is narrowed to a small area. However, before he goes overboard on that, could he tell us the last occasion on which a prosecution was launched under the 1911 Act in any of the categories outside the five categories that he has, so called, narrowed it down to?

Mr. Hurd

That is not the point. I have just heard an intervention from my hon. Friend the Member for Hendon, North (Mr. Gorst) who is seriously concerned about Legionnaire's disease. My right hon. Friend the Member for Castle Point (Sir B. Braine) was concerned in Committee about environmental safety. My right hon. Friend told us with example after example how he had been told by officials that it was illegal—not wrong—to give him information that he thought he should have about environmental safety. Therefore, we are not talking about something that is abstract. That is a real fear and worry, and according to my right hon. Friend the Member for Castle Point, the Father of the House, officials have said on numerous occasions that they cannot give the information because it is illegal. We are sweeping that away. My hon. Friend the Member for Hendon, North can sleep in his bed without worries about Legionnaire's disease, safe in the knowledge that if people now say that information in the Department of Health about Legionnaire's disease is confidential and cannot be revealed because of section 2, that argument does not apply. That is true except in the limited case sketched by my hon. Friend the Member for Lancashire, West (Mr. Hind). Of course, it may still be wrong to release that information and there may be disciplinary consequences if it is released. That would be true even in the Labour party and in any other organisation. We are talking about the criminal law.

Mr. Aitken

We are talking about section 2 of the Official Secrets Act 1911.

Mr. Hurd

Yes, but my hon. Friend the Member for Hendon, North said that I was talking about a hypothetical situation. Our speeches in Committee prove that that is nonsense.

Mr. Gorst

I am sorry if I misled my right hon. Friend in that respect. Perhaps I should have made it clearer that I was concerned with information that might be exchanged between Governments. I merely mentioned Legionnaire's disease as an issue that is constantly cropping up and I withdraw the illustration if my right hon. Friend thinks that it misleads him further. I am concerned about information on health and safety matters, exchanged between Governments, which would be disallowed under the Bill. If I am wrong, I hope that my right hon. Friend will say so.

Mr. Hurd

I follow my hon. Friend's narrowing of the point. I am sorry if I interpreted him too widely.

Mr. Richard Shepherd

rose—

Mr. Hurd

Let me answer one point at a time.

The information to which my hon. Friend the Member for Hendon, North referred would then have to pass the harm test. If he looks at the harm test in clause 3, he will see that he would have to invent a fairly ingenious hypothesis to conceive of circumstances in which the prosecution could argue that the disclosure about Legionnaire's disease, received in confidence from a foreign Government, would prejudice or jeopardise United Kingdom interests abroad. That is the test, not embarrassment to the Government.

Mr. Gorst

What about AIDS?

Mr. Hurd

The same point would apply.

Mr. Richard Shepherd

The important point, which I am sure my right hon. Friend takes on board, is that we are considering only offences under section 2 of the Official Secrets Act 1911, which involves the climate of secrecy in Whitehall. There are, of course, about 80 other pieces of legislation that make the disclosure of information a criminal offence, on environmental matters, pollution controls and similar matters, and such disclosures will remain a criminal offence after the Bill is passed.

Mr. Hurd

I am talking about the scope of the Bill. I hope that I have dealt with the points raised by my hon. Friend the Member for Hendon, North.

I turn to new clause 2, although I believe that it was right for me to have been distracted from it. I shall try to show briefly the damage that might result from the system that the Opposition seek to erect. The Bill protects, quite properly, information that needs to be protected from disclosure. if that protection fails, or anyone is given cause or encouragement to believe that the protection is in some way a paper tiger, the Bill would fail in one of its two main purposes. It would give a signal of encouragement, not of deterrence. It would say that as long as some allegedly serious misconduct, or any neglect at all, in the performance of official duties can be identified and can be argued to have been reported to no effect, it is all right to disclose that information whatever damage has been done. That is the thrust of the new clause. I cannot believe that the hon. Member for Erdington really believes that that is a sensible way to proceed or that it is safe.

I return to what the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) said on 2 February. He said in a flourish that no one would attempt to justify revealing, say, the battle plans of the British Army of the Rhine".—[Official Report, 2 February 1989; Vol. 146, c. 457.] He is right; no one would. Yet it would be perfectly possible under the amendment.

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Mr. Richard Shepherd

That would be an offence under section 1.

Mr. Hurd

I disagree because section 1 deals with espionage. We are talking about section 2. The disclosure I have mentioned would not necessarily fall under section 1

Mr. Shepherd

Espionage is a section 1 offence.

Mr. Hurd

It would not necessarily fall under section 1.

Let us consider another form of serious revelation. When we were talking about prior publication, I referred to talk about the techniques of counter-terrorism. Whatever example one chooses, I am making the point that the new clause is not balanced, because it provides an overarching defence. The hon. Member for Erdington says that it does not, but I believe that he misunderstands it. It is an overarching defence because it allows any amount of damage to be done as long as the defendant can prove—and he has only to prove it on the balance of probability—that the information disclosed gave him reasonable cause to believe that it showed some form of "serious misconduct" or any neglect of official duty. It is odd that the Opposition, who are constantly twitting me for not putting the word "serious" into the Bill, did not put it into the amendment. They refer not to "serious misconduct" but to any "neglect…of official duty". That is the crucial point. The argument of the Opposition and the proponents of a public interest defence—even defined narrowly—is that it should be allowable for somebody to make a disclosure, however great the damage that might result from that, provided that the information disclosed gave him reasonable cause to believe that it showed some form of serious misconduct or any neglect of official duty.

There is a further point about timing which the Opposition have not hauled on board. If a disclosure were made, damage would result and that would be past recall. There would then be an argument before the courts about whether there was justification under any of the different public interest defences that had been proposed. The public servant concerned might be able to show that he sincerely thought that he had reason to believe that his disclosure showed some neglect of official duty. But the damage would have been done. The public servant might or might not be convicted, depending on what the jury decided, but the damage could not be repaired. My right hon. Friend the Secretary of State for Defence could not run the armed services—and nor could the Security Service or the police be run—on the basis of the damage being done, with an argument then taking place between lawyers on a definition of whether disclosure was justified.

Mr. Corbett

I do not know why the Home Secretary is concentrating on security, intelligence and the armed forces. He knows as well as I do that clause I would cover the security and intelligence forces and that disclosure would be an absolute offence. Is he seriously arguing that anybody would remotely consider a defence of, say, neglect of the performance of official duty if he had leaked the battle plans of the Army of the Rhine? That does not make sense.

Mr. Hurd

No, it does not and that is why we oppose the new clause. I am not in favour of balance in this matter. I can see the argument that we should enable a balance, but that is not even what is being proposed. The new clause proposes that if any damage is done, however serious, the public servant would then, after the damage had been done, be able to say that he had reasonable cause to believe that the information indicated some form of serious misconduct or any neglect of official duty.

Sir Ian Gilmour

I want to make a minor, but important, point. Surely my right hon. Friend is misreading the new clause when he speaks of "any neglect". Neglect has to be read in conjunction with the later words which say, "other serious misconduct". It is plain that the "serious misconduct" applies also to neglect.

Mr. Hurd

I am advised that that is not so. There may be loose drafting there, but I am not resting my argument entirely on that point. I am advised that, as it stands, the neglect of official duty is not qualified. The Opposition new clause—

Mr. Corbett

It is an all-party new clause, not an Opposition one.

Mr. Hurd

I was giving the hon. Gentleman a compliment. The new clause mentions the existence of internal remedies, but does not apply any judgment about who is to decide, and it would be perfectly possible for the public servant concerned to gallop through whatever remedies were available in a perfunctory way, if it were for him to decide whether those remedies had been exhausted. I do not think that the attempt to deal with that is adequate. If only because of the time scale that I am talking about, I do not believe that to have the damage first and then the argument within the narrow sphere of the Bill is a risk that any Government would advise the House to take.

My hon. Friend the Member for Thanet, South (Mr. Aitken) made two points about amendment No. 8. In general, the harm test would apply to all the examples that he gave. The harm test in this sphere is exacting. However, I wonder whether my hon. Friend really thinks that it is right and automatically justified that any terrorist threat reaching us from abroad should be disclosed, however alarmist.—[Interruption.] Well, amendment No. 8 would do that. It would clearly be a matter of public safety. The harm test would adequately protect the position that my hon. Friend wants to protect but in a few cases that would fall within the scope of the amendment it would not be axiomatic that disclosure should be unprotected.

My hon. Friend the Member for Thanet, South also dealt with amendment No. 1, which stands in my name, and which fulfils an obligation that I made to see whether we could clarify this matter. I am not sure whether my hon. Friend thinks that I have managed to do so. I have wrestled intellectually with my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) on this and I hope that he at least is satisfied.

It is now spelt out that the harm test applies in both cases. The harm test about British interests abroad applies whether the prosecution argues that it was the contents of the disclosure that passed the harm test or the fact of disclosure. In either case, the prosecution would have to prove harm and in neither case would it be an absolute offence.

Mr. Rees

I had been going to intervene, but the Home Secretary has now sat down. I wonder whether he can explain the problem that I am facing. I used to think—and I still think—that under section 2 the Attorney-General of the day, who holds that position as legal adviser to the Government—not in any political sense—advises on prosecution and, as things are at the moment, makes his decision in the public interest. The Home Secretary will remember that we touched on this tangentially earlier when the former Solicitor-General, my right hon. and learned Friend the Member for Warley, West (Mr. Archer), made it clear that the words "public interest" are used in the remit of the Attorney-General in a different way from the use of "public interest" in discussion of the Bill. Nevertheless, under the Bill, the Attorney-General has to consent to prosecution.

In deciding whether there shall be a criminal prosecution and on the Attorney-General evaluating some of the criteria that we have been discussing, such as the harm test and whether harm may be caused, could it be that it would be in the public interest not to prosecute? I recall that in some instances it was thought better to keep quiet than to let the information get out and that course of action has been regarded as being in the public interest. Is that public interest aspect still present in this Bill?

Mr. Hurd

The role of my right hon. and learned Friend the Attorney-General as the prosecuting party and the way in which he discharges his role are not affected by the Bill, except to the extent that they are greatly restricted in the ways that I have described, which are central to the Bill. The way in which my right hon. and learned Friend operates within the scope of the criminal law as it will remain under the Bill will be of exactly the same quality, character and nature and his decision making will be exactly the same as that with which the right hon. Gentleman is familiar.

Mr. Maclennan

I recognise that the Secretary of State has a closed mind on the issue of a public interest defence and therefore I do not propose to pursue him on that, although I found some of his arguments profoundly unsatisfactory.

I wish to probe a little more into amendment No. 1. It seems to me that the new version of clause 3(3) reveals a catch-all that is much greater and more seriously damaging than that which appeared even in the original drafting. The Home Secretary has said that the amendment was intended to make it clear that the harm test applied. However, I submit that that is not so in any meaningful sense. A presumption of harm flows from this subsection when viewed in conjunction with subsection (2)(b).

It is a difficult argument to make, but I must try to do so. Clause 3 provides that a Crown servant or Government contractor is guilty of an offence if he makes a damaging disclosure and that that disclosure will be deemed to be damaging if it is of information or of a document or article which is likely to have any of those effects that have been spelled out.

Amendment No. 1 states: In the case of information or a document or article …

1. (a) the fact that it is confidential, or
2. (b) its nature or contents,

may be sufficient to establish for the purposes of subsection (2)(b) above that the information, document or article is such that its unauthorised disclosure would be likely to have any of the effects there mentioned. If that is a harm test, it is one which it would be extremely easy for the prosecution to satisfy because it seeks to define the document in terms of its likely impact, not its actual impact. As the clause deals with matters that may be extremely trivial, and makes it an offence to publish such information because it is described as any information, document or other article relating to international relations", that is a catch-all phrase if ever there was one. It is too wide a definition.

It is unacceptable that we should create a crime that is susceptible to punishment of up to two years' imprisonment for the publication of a document that may be such that its unauthorised disclosure would be unlikely to have any of the effects that have been mentioned. The amendment is a wholly unacceptable attempt to clarify what was perhaps obscure before, but was certainly worrying. However, now it is no longer only worrying; it is deeply disturbing.

Sir Ian Gilmour

My right hon. Friend the Home Secretary deployed his usual forceful arguments against the public interest defence but the arguments that he advanced against it are totally inapplicable. He referred first to revealing the battle plans of the British Army of the Rhine. As my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) said, that would clearly fall under section 1 of the Official Secrets Act, but, even if it did not, the idea that anyone could justify that as being in the public interest on the grounds that he might have been given reasonable cause to believe that it indicated the existence of crime, fraud, clearly could not be advanced as a defence. It would be laughed out of court and the jury would not look at it. Surely the same applies to the other example given by my right hon. Friend about revealing counter-terrorist operations. The idea that somebody could say, "I did that because, after all, there was a little crime about" simply would not work. It is not—

Mr. Hurd

Indeed, it might not work. The jury might not be convinced and then whatever harm had been done would have been done and there would be no rectifying it, but it would be a small satisfaction if the chap went to prison.

Sir Ian Gilmour

The chap is going to prison anyway. He is unlikely to have his decision about revealing this information determined by whether there will be a public interest offence. He will be a man, certainly on the examples given by my right hon. Friend, who will be either off his head or a near traitor. So the idea that he will be influenced by a provision such as this is not applicable. In other words, my right hon. Friend has adduced a way out of arguments that would not apply to any of the examples that we have in mind.

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My hon. Friend the Member for Thanet, South (Mr. Aitken) asked, in relation to this being a great liberalising measure, when there had last been prosecutions in any of the categories that are to be removed from the Official Secrets Act. I understood the Home Secretary to admit that there had not been any for a long time. But he said that it was still a liberalising measure because civil servants in the Department of the Environment would no longer be able to use the Official Secrets Act as a reason for not giving information.

I cannot regard that explanation as bringing the Bill within the category of a liberalising measure because, as my hon. Friend said, they will still be able not to give the information. In other words, one rather unserious excuse has been removed from them, and that is the main reason given by my right hon. Friend to justify his claim that this is a liberalising measure. It is tidying up the law—I appreciate that and that is, no doubt, a good step to take—but in tidying it up it is tightening it elsewhere, which, I am afraid, makes it the opposite of a liberalising measure.

Mr. Norman Buchan (Paisley, South)

I have hesitated to speak before this point because I missed the beginning of today's proceedings, for which I apologise to the House.

Not for the first time the Home Secretary has got matters seriously wrong. The expression in new clause 2, neglect in the performance of official duty or other serious misconduct", by definition qualifies the previous reference to, crime, fraud, abuse of authority as being serious misconduct. On that count the right hon. Gentleman is speaking nonsense.

The Home Secretary goes on to say that the danger in giving a public interest defence is that the cat will already be out of the bag. He gave as an example the battle plans of BAOR and said that by the time the matter came to court the secret would be out. But we are talking in terms of a defence, and it would be no defence for me to release the battle plans of BAOR and say that I thought fraud had been committed in Squadron No. 2. That would not be the point. It would have come out because I had already released those battle plans. At that point, not at any later stage, the facts would have come out.

I share the anxiety of the hon. Member for Caithness and Sutherland (Mr. Maclennan) about Government amendment No. 1. The fact that something is confidential could of itself be sufficient to establish guilt under the previous subsection. It cannot be right, with such contorted thinking, to leave the measure without any public interest defence.

In the same way as it has been argued that the law of confidentiality cannot be extended to find people guilty simply to cover up an iniquity—in the words of the last century—so it cannot be the case here that a crime—be it fraud or whatever—revealed in this process must automatically carry a verdict of guilty because a public interest defence cannot be adduced.

I return to the example that I have given in the past and to which I have not yet received a reply from the Home Secretary, and that is the position we face on the Clyde. If it is known that a nuclear leak has taken place, and it is in the interest of the communities there that that fact should be revealed, the decision to reveal cannot be defended in the courts because the harm that would have been done would come under clause 2 in relation to defence.

We cannot leave the Bill—any more than we could leave the law of confidence, the concept that the Government have been fond of using in recent years—without a defence. Equally, if there is no public interest defence in this case, the Home Secretary is stripping out almost all possible forms of defence, despite the fact that we are dealing with areas which are prone to offence of one kind or another. That is the enormity of what the right hon. Gentleman is doing, sometimes on the basis of grammar. I hope that he will look at the whole matter again.

Mr. Dykes

I, too, support new clause 2 and will address my remarks to that and to the other amendments in this series. I am glad that anxiety has been expressed about Government amendment No. 1 because the more one considers it, the more worried one becomes lest it represents an unsatisfactory replacement of the present provision.

I hope that in commenting on new clause 2 I shall not repeat too much of what was said last week in Committee. I, too, am astonished by the example that the Home Secretary gave about a revelation of top secret battle plans. I cannot see how that could come into the context of an adjudication in the area we are now discussing. So inextricably and exclusively wrapped up is the issue in clause 1, like a massive piece of treason, espionage or a combination of both, that even if there were, coincidentally and surprisingly, some conjunction of internal departmental serious misconduct, and so on, one would have to envisage two separate cases. There would be no connection between the two. Even if they took place in the same court building, they would be a million miles apart intellectually, politically and constitutionally.

Although it has been suggested by Opposition Members that my right hon. Friend the Home Secretary has a closed mind on this, I hope that he will give further thought to the possibility of accepting new clause 2 and will further examine amendment No. 8. I am disturbed by the fact that the implication of the Government's response is always that a person concerned in a clause 2 case would be rushing hastily into some form of public disclosure. In the new clause we are thinking in realistic terms of the tail-end of a long process of internal investigation through the proper channels before any public disclosure has been made. It is not like a journalist writing an article about policy. Here we have someone who, with great psychological pain and travail, feels moved to reveal something basically wrong and rotten by way of a happening or misconduct. I hope that it will not have occurred in a Government Department, and it is to be hoped that all Departments are free of such matters, but such things do happen from time to time for various reasons, perhaps out of moral weakness. Even inefficiency can produce misconduct and should be revealed.

Mr. Rooker

The Bill makes it a criminal offence to point the finger at criminality.

Mr. Dykes

That was the central objection voiced both in Committee and on Second Reading. My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), who is known for his careful choice of words, used the expression "monstrous" to describe the peril facing the body politic and the public if we permit the Bill to be passed in its present form.

I was postulating that it would be a long, agonising process for the person who was going to blow the whistle or spill the beans. One can imagine the agony that he would feel and the pacing up and down, as it were, that would occur in the mind and spirit of a conscientious public servant, for example, in using the proper channels. followed by lengthy investigations, with the matter passing up through the various layers of scrutiny internally by his respected superiors—one hopes that they would be respected.

By the same reciprocal token, that would involve the same massive concentration of mind on the part of those superior officials having to respond to that person's complaints. They must not brush them aside. Various books have been written about the Civil Service of the past, describing how such matters could be brushed aside, with career references being made to those concerned to ensure that they concentrated their minds on the real issue, which was keeping their mouths shut, and preventing them, if necessary, from pursuing the matter. That would be a wholly beneficial process which would help all future Governments and it should therefore be welcomed. If it were an implicit part of the Bill, that would satisfy the whole House.

The new clause is extremely solemn and important. Once again, regrettably and sadly, we see that except for one important exception that we discussed earlier today—I repeat that I have sympathy for my right hon. Friend the Home Secretary's position and the problems and pressures that he faces—the Government are not prepared to entertain any indispensable improvements. The public interest defence surely comes into that, ranking equally with publication as being absolutely ineluctable and indispensable elements in improving the Bill. If that improvement is not made, it will be a matter of regret—and something that the Government themselves will regret later.

Question put and negatived.