§ Mr. Roy Hattersley (Birmingham, Sparkbrook)
I beg to move amendment No. 71, in page I, line 5, leave out 'or has been'.
With this we may take the following amendments: No. 14, in page 1, line 9, leave out 'discloses' and insert`makes a damaging disclosure of'.No. 69, in page 1, line 19, leave out 'or has been'.
No. 70, in page 1, line 22, leave out 'or has been'.
No. 16, in page 1, line 25, leave out 'subsection (3)
above' and insert 'this section'.
No. 67, in clause 7, page 7, line 7, at end insert`or it has been authorised by the Publications Review Board set up under this Act'.New clause 6—Publications Review Board—1048'(1) There shall be a body, called the Publications Review Body, which shall authorise the public disclosure of information by former members of the security and intelligence services.(2) No information shall be disclosed, whether in books, articles or other media, by former members of the security and intelligence services without the approval of the Board.(3) The Board shall consist of a Chairman and three members appointed by the Secretary of State.(4) The Board shall notify its decision as to the granting of permission for disclosure to applicants within six months of application being made to it.'
§ Mr. Hattersley
No doubt the first debate in Committee of the Official Secrets Bill will demonstrate the way in which the Committee intends to do its work. I hope that it will demonstrate that although the Committee is divided on the need to change the Bill's contents, it is unanimous in its belief that the Bill must be debated in great detail and, therefore, at great length. It is not the Opposition's intention to be either fractious or obstructive, but I hope that the Government will understand that we expect sufficient time for every clause to be given the scrutiny it deserves. There are many long days and nights ahead of us and we had better acknowledge that at the start.
This first debate concerns the absolute obligation to secrecy that the Bill places on members of the security and intelligence services and on other persons associated with those services and nominated by the Secretary of State about every aspect and detail of their work for their entire lifetime. Amendment No. 71 was intended to probe that concept and to provide an opportunity for the Secretary of State to justify the notion that total and permanent secrecy —save only for those occasions when he lifts the interdict —is a reasonable obligation to place on members of the Security Service and those associated with them. We do not propose to press the amendment to a vote, but I suspect that the hon. Member for Aldridge-Brownhills (Mr. Shepherd), whose amendments are grouped with amendment No. 71 will wish the Committee to divide and we shall support him in that case.
The amendments that the hon. Member has tabled, to which he will, no doubt, speak, limit action under clause 1 to disclosures that do damage, and the principle inherent in the limitation of prosecutions —or successful prosecutions—to the publication of items that do damage to the interests of the country lies at the heart of most of our objections to the Bill. We believe that information should be suppressed only when suppression is necessary. That is clearly not the intention of clause 1 in the particulars that relate to the security services, those who work in them and those associated with them because they make the ban on publication absolute and for ever.
Amendment No. 67 and new clause 6 deal with the concept of absolute and permanent secrecy in a rather different way. They propose a publications review board, which will decide whether information that an ex-member of the security services wishes to publish is appropriate for publication. At this stage, I shall say no more on those amendments except that they are an improvement. However, as such a review board would consist of Government nominees, it would not be much of an improvement.
Before we debate the principle that I have described, it is important to recall some of the background to the Bill. Some cynics suggest that one reason why the Prime Minister allowed the Bill to be introduced at all was her 1049 obsessive determination to vindicate her paranoid behaviour in the case of Mr. Peter Wright and "Spycatcher". It is important to remember specifically in the context of the "Spycatcher" case that other relevations that in any normal and reasonable judgment were at least as damaging to the interests of the state appeared in a book by Mr. Chapman Pincher, which the Government either approved or took no steps to prohibit.
To avoid future misinterpretation—or at least, as it is the Minister of State, the hon. Member for Oxford, West and Abingdon (Mr. Patten) who is to reply later to the debate, to ensure that he has to misinterpret me intentionally rather than by mistake—let me say again that I have no time at all for Mr. Peter Wright. What is more, if one considers the way in which he was prepared to profane the dead, I do not have much time for Mr. Chapman Pincher either, but personal opinions of those two gentlemen are neither here nor there. The question to which the amendments relate is whether it is reasonable for all memoirs of the secret service to be prohibited unless—the word "unless" is important—they are published with Government approval—that is, with the lawful authority of the Government, as stipulated in clause 1.
If clause 1 is agreed unamended, the Government will have the right to prohibit any secret service revelations of which they disapprove, no matter how ancient, trivial or important to democratic debate. On the other hand, the Government will have the right to authorise any revelations that they find convenient. In future, as in the past, a group of Ministers will be able to agree that one memoir may be published because its contents support their interests but suppress another that they find politically embarrassing. That seems an arbitrary power that should not be allowed to the Government of a democracy.
As the debate continues, it will revolve increasingly around two concepts. One is the belief that it should be possible to mount a defence against the disclosure of classified information with a claim that its publication was justified in the public interest. We shall debate that concept specifically in the third group of amendments.
The second argument around which all the other propositions will be built is the contention that before a prosecution can succeed, it must be demonstrated that publication harmed the interests of the state. On Second Reading, the Home Secretary made great play of the test of damage that would be inserted into prosecutions, and the right of juries to decide whether damage had been done. Indeed, a Home Office press release referred to "a public interest defence" although neither the concept nor the words appear in the Bill.
In the terms of this, our first debate, it is essential to remember that none of the protections of which the Home Secretary made such play on Second Reading—irrespective of whether they are regarded as adequate or inadequate—apply to the clause that we are debating or to the revelations by members of the security services or those designated by the Government as being associated with the security services.
Clause 1 is comprehensive and arbitrary in the area that it covers. There is no need to demonstrate damage to the national interest. In fact, the fact of disclosure—and the fact alone—is all that is necessary for conviction, no matter how inconsequential the published information.
1050 The White Paper, with which this exercise began, demonstrates in paragraph 42 exactly how arbitrary arid unreasonable such a ban would be, boldly stating that itshould not be necessary for the prosecution to adduce evidence of the likely damage to the operation of the security or intelligence service when information relating to security or intelligence has been disclosed by a member or former member of one of the services.That is the simple assertion that the Government and Home Secretary seem to believe is enough to carry the argument.
On the other hand, the Franks committee recommendations of 1972, which the Home Secretary is always saying have been improved upon by the Bill were absolutely explicit on that point. The Franks committee recommended that the harm test should be applied to the security service as to any other category of official secrets.
It cannot be necessary or right to make every item connected with security—no matter how loosely connected, no matter how unimportant—subject to that restriction. It is intolerable in a free society that the Government alone should be the sole arbiter of what is covered by this ban and of the occasions when the ban should be lifted.
Amendments Nos. 14 and 60 do no more than limit the ban to the publication of information which would be positively damaging. By resisting the amendments, if the Government do so—I have no doubt—that they will—the Minister of State will be asserting that he wishes the ban to apply to information that can be published without damage. That is the only logical conclusion that could be drawn from the recommendation to vote against the two amendments.
On Second Reading, the Home Secretary made no attempt to justify a blanket prohibition. He merely asserted its necessity. He then went on to list examples of secret service activities which nobody in their right minds would want to see revealed. When cornered, the Home Secretary always argues in that way—taking absurd examples of what might be revealed and implying that those who want a more acceptable system want to reveal everything.
The question that must be addressed in this amendment is not whether or not everything the secret service does should be made public, it is whether nothing that the secret service does should ever become public but should remain secret—important or trivial, damaging to the national interest or of help to the national interest, legal or illegal.
I shall conclude on that point about illegality. The fact that the ban on secret service information covers illegal as well as legal activities is perhaps the most disturbing aspect of the blanket prohibition. On Monday, the Home Secretary told us once again that he had brought the security services into a legal framework. If it operates outside the boundaries which the Home Secretary is so proud to have drawn, it will still be an offence under this Bill for a member of the service to reveal the illegality, and it will still be an offence for a newspaper to print the revelation.
When we debated the Security Service Bill—which cannot be separated from what we now debate—the Home Secretary conceded, after some wriggling, that under the provisions of this Bill were I to be told by a member of the Security Service that my telephone was being tapped or that my premises had been burgled, it would be an offence for me to make that information public. I hope that the 1051 Minister of State will confirm today that, were Ito be told by a member of the security services that my telephone had been tapped or my property burgled without proper warrant—that is to say, illegally—it would still be illegal for me to make that information public.
§ The Minister of State, Home Office (Mr. John Patten)
Under those circumstances, the right hon. Gentleman should take his complaint directly to the tribunal that is to be set up under the Security Service Bill.
§ Mr. Hattersley
I am always grateful for the Minister of State's advice, but having given it me, perhaps he will now answer my question. I shall put it to him again. If a member of the security services tells me that my telephone is being tapped without warrant and therefore illegally, or that my house has been burgled without warrant and therefore illegally, is it or is it not a criminal offence for me to make that information public?
§ Mr. Patten
It would be a criminal offence for the right hon. Gentleman to make that public, and quite rightly so because he has an avenue of redress. He can go to the tribunal set up under the Security Service Bill.
§ Mr. Hattersley
I do not want to begin the Committee stage on an acrimonious note, but that reply reveals something not only about the Government, but about the Minister of State. He can apparently say with conviction that if I have been told that I have been the subject of illegal Government action, it is a criminal offence for me to reveal that and that he approves of it being a criminal offence for me to reveal it.
§ Sir Ian Gilmour (Cheshunt and Amersham)
Surely, in those circumstances, it would be the right hon. Gentleman's positive duty to reveal such information?
§ Mr. Hattersley
I certainly believe that, but as I also believe that it is my positive duty to remain within the rules of order, the case that the right hon. Gentleman tempts me to develop is one which I propose to develop in the discussions on the third group of amendments when the public interest criteria is the crucial issue.
The idea that the Government might suggest—the Minister of State did suggest—that it is supportable to argue that a man or woman who has been subject to an illegal act by the Government should be sent to prison for making that public, is a view that is inconsistent with the traditions of this country. As I do not want to overstate the case, I shall not tell the Committee those countries in eastern Europe and south America with which it is consistent.
§ Mr. Andrew F. Bennett (Denton and Reddish)
My right hon. Friend obviously knows the legislation, but what about the ordinary citizen who does not know the legislation and who needs to seek advice, as my hon. Friend did on this point from the Minister of State? What is the position if such a person goes around saying that he has discovered that that has happened and asking what he should do about it? Presumably every time that he asks for advice he is committing an offence. That means that every citizen must know that the way to proceed if he hears such information is to go to the tribunal, and surely that is an utter farce.
§ Mr. Hattersley
Yes, and the case gets worse. I shall pursue my hon. Friend's example of an ordinary citizen being told by a member of the security services that his house has been burgled illegally. As I understand it, the Minister of State who has not been tardy in confirming my judgments on the Bill, will say that, if that individual goes to the citizens advice bureau saying, "My house has been burgled illegally, what shall I do about it?", he is committing a criminal offence by telling the person in the citizens advice bureau what has happened. If the individual goes to a solicitor there is, as I understand it, no legal protection and no rule that says that the matter is so privileged that he may discuss it with a solicitor. So if a person goes to his solicitor and says, "I am assured that I have been illegally burgled," or "I have had my telephone tapped illegally, oh solicitor, what am I to do?", that person is committing a criminal offence, and the Minister is defending that proposition.
§ Mr. Robert Maclennan (Caithness and Sutherland)
Does the right hon. Gentleman agree that the Minister of state's extraordinary intervention shows that he has failed to recognise that the commission of an offence is not something between the person who commits the offence and the victim of that offence alone, which may or may not be remedied by appeal to a tribunal, but something that touches society at large, for which the tribunal offers no remedy at all?
§ Mr. Hattersley
As the debate progresses, not only today but in the future, for the sake of clarity and intellectual accuracy it will be important to comment, not on the Minister, but on the Bill. The Minister's answers have revealed that the Government misunderstand two matters. First, they do not realise the relationship between the state and the citizen, described by the hon. Member for Caithness and Sutherland (Mr. Maclennan). Secondly, the Government believe that the state and the Government cannot be distinguished. What the Government believe is right, is right for the state. What is in the public interest is what the Government think is in the public interest and a test of harm is what the Government think is harmful. I shall repeat—I hope not pompously or pretentiously—that those views are not consistent with a free society.
§ 5 pm
§ Mr. John Gorst (Hendon, North)
As a newcomer to the subject, I wonder whether the right hon. Gentleman will answer a point that has puzzled me about his recent exchange with his hon. Friend the Member for Denton and Reddish (Mr. Bennett). Let us suppose that a member of the Security Service approaches the right hon. Gentleman in his capacity as a Member of Parliament and informs him about a case of telephone tapping. If the right hon. Gentleman revealed the matter on the Floor of the House would he, according to his investigations, be subject to prosecution? What would his position be as a Member of Parliament?
§ Mr. Hattersley
I am not sure whether I, as a Member of Parliament, revealing the information in the House, would be guilty and subject to criminal prosecution. I know that my constituent, in telling me, in order that I might reveal the information on the Floor of the House, would certainly be subject to criminal prosecution.
Having tried valiantly, but failed, to find anyone other than the Minister who supports the authoritarian 1053 nonsense he is about to defend, I shall conclude. It is not inappropriate for me to repeat the point, even though it has been made time and time again. One has only to describe the circumstances in which an innocent person is prosecuted for revealing that the state has operated unlawfully against him or her, to realise how unacceptable the proposition is.
§ Mr. Richard Shepherd (Aldridge-Brownhills)
Is it not right that if any Security Service officer were to approach a Member of Parliament, that would be a criminal offence under the Bill? That is what many of us find offensive. Has not the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) heard that many Conservative Members have maintained that it is possible for former or present members of the Security Service to raise such matters with their Members of Parliament? Can the right hon. Gentleman identify anywhere in the Bill where that possibility arises in law?
§ Mr. Hattersley
The answer, as the hon. Gentleman knows better than me, is that it does not appear. I look forward to supporting his positive and detailed amendments as one way that this arbitrary absurdity can be overcome. I shall certainly support his amendments as will my right hon. and hon. Friends.
All we ask—and we are grateful that the hon, Gentleman asks for it—is that a system be provided which avoids the arbitrary nature of the prohibition and enables the state and the courts, which represent the national interest, to distinguish between those matters which it is possible and safe to reveal, and those which it is wrong and dangerous to reveal. I have no strong feelings about how that proper division is obtained. It may be—I suspect that we shall hear this time after time in Committee—that the amendments are inadequate in some detail to achieve that purpose. That is not the issue. The issue is the principle and the test of principle. If the Government believe that the principle is right but the application of it is wrong, we shall gladly accept that, in some future debate, the Government will provide a better mechanism of their own. That is the nature of the Committee stage of a Bill.
We seek to establish in this first debate that it is wholly unacceptable for the Government of the day to be the sole arbiter of what security information should or should not be published and what security information should or should not lead to prosecution.
§ Mr. Rupert Allason (Torbay)
I beg to draw the House's attention to new clause 6 and amendment No. 67. The issue of the duty of confidentiality is central to the Bill. I shall take the Committee back to the history of the duty of confidentiality.
An important judgment was given in the House of Lords some time ago which knocked a major hole in the Government's interpretation of the duty of confidentiality. As I understand it, the duty of confidentiality is straightforward in civil law—it is the duty of a servant to an employer to protect trade secrets. An example would be where an employee of the Coca—Cola company moved to Pepsi—Cola and took the magic formula with him or her. Under those circumstances, there is a remedy in law for the employer to protect his secrets. The key word in the duty of confidentiality issue is "confidentiality". It assumes that the magic formula is a secret.
1054 Up to the time of the House of Lords judgment, the Government interpreted the duty of confidentiality as a duty of lifelong secrecy. That was rightly rejected by their Lordships.
§ Mr. Robin Corbett (Birmingham, Erdington)
The hon. Gentleman gave us an analogy involving Coca-Cola and Pepsi-Cola—both of which are best avoided in my experience—but surely in that case the secret formula would be guarded by patent law.
§ Mr. Allason
Indeed, but that is also civil law. It would not be a criminal offence if somebody tried to trade a secret that they had acquired from a former employer. In the case of Peter Wright, it did not matter whether he worked for the Security Service or for British Rail. The principle over which the Government prosecuted him was whether a breach of confidentiality had occurred. The case was defeated because, to be frank, there were no secrets in the Wright book. In Australia the book was examined line by line and no great disclosures were found, although there was a certain amount of new material. However, the plank on which the defence rested was that there was nothing new in the book and that most of the information had been published elsewhere.
My amendment and new clause seek to introduce yet another check and balance. When the Security Service Bill was in Committee the Government rejected all the checks and balances proposed—including judicial review, Committees of Privy Councillors and parliamentary oversight. I seek to persuade the Committee today that my amendment and new clause would provide a check or balance.
At the heart of this matter is the sanguine attitude of the Secretary of State and the Minister. In the other place, the Benches have edges so that bishops who have enjoyed heavy lunches are prevented from falling off. I nearly fell off my Bench when I heard the Secretary of State wax lyrical about the post-war record of the Security Service. I wonder who advised him on that. Did the advice come from Home Office officials or from the Security Service?
I shall give one or two straightforward facts to illustrate the post-war record of the Security Service. The Committee may be surprised to learn that between 1945 and 1972—the period the Secretary of State was talking about—not one Soviet spy was arrested in this country on the initiative of the Security Service. During that period, all the famous spies—including Fuchs, Nunn May, Vassall, the Portland spy, Harry Houghton, Ethel Gee and Gordon Lonsdale—were identified by defectors who arrived not in this country but in the United States and pinpointed those leaks of security in the British establishment.
There was, however, one case between 1945 and 1972, and it is trotted out by the Security Service as the classic example of its counter-intelligence prowess. It is the case of William Martin Marshall, who was arrested for passing secrets to a Soviet intelligence officer. How was he caught? The Committee will be interested to know that a Security Service watcher got off a bus at Kingston when going home for lunch one day and saw a Soviet intelligence officer lurking in a doorway. Interested to know why this individual, on whom he had been targeted for surveillance six months earlier, was in Kingston, he hung around. He waited and saw Sergei Kuznetsov meet William Martin Marshall, who was a member of the diplomatic wireless 1055 service and who was subsequently convicted. So between 1945 and 1972, the period about which the Secretary of State waxed so lyrical, the splendid record of the Security Service was that of having caught just one Soviet spy—and that by mistake.
§ Mr. Allason
That is an interesting route to follow—that if we have a useless Security Service we should keep that a secret because it may well be damaging. I agree entirely, but I want an efficient service.
If the Secretary of State takes advice on this matter, he may like to turn his attention to the undeniable fact—
§ Mr. Hattersley
May I put to the hon. Gentleman the opposite, or perhaps complementary, argument to that which he has offered us? Some of us believe that if a draught of exposure of information were to blow through the Security Service and it became accountable, it might become more efficient. Instead of wasting its time tapping trade unionists' telephones, it might catch some spies—another argument in favour of what the hon. Gentleman proposes.
§ Mr. Allason
The record in Australia, Canada and the United States shows that in spite of the worst fears about oversight the intelligence communities there accept and live with the new mechanisms, and in Canada the system has been used to the advantage of the Security Service. The report that I mentioned in Committee during discussion of the Security Service Bill is illuminating and instructive to the public and shows the importance of the work of the security service. Some of the details are deleted from the case histories, but three or four case histories from the various branches of the Canadian security service are there, and the report has done a tremendous public relations job for the organisation. That is one of the reasons why I tabled an amendment to that Bill.
I come now to the idea of greater efficiency on the part of the Security Service. It is not widely known that there are not just one or two establishments in London but that, at any given time, between eight and 11 large buildings are being used by the service. Is it not extraordinary that a counter-espionage and counter-intelligence organisation should locate its establishment in the only geographical region in the United Kingdom that is freely available to Soviet intelligence officers working under diplomatic cover? I am not recommending privatisation of the Security Service, but I certainly recommend moving it out of London—perhaps even to Torbay. If the Security Service remains in London it will be within a couple of miles of Soviet diplomatic missions and therefore a target. Perhaps that aspect of efficiency should also be considered.
The real substance of my amendment and new clause is to allow Security Service officers and intelligence officers of all sorts to write their memoirs. There is nothing staggering about that—the practice has been going on for years. I shall give a few examples from the Security Service. No fewer than two directors-general of the Security 1056 Service have written their memoirs. Sir Percy Sillitoe's memoirs, "Cloak Without Dagger", were written in office time, ghosted by his personal assistant, and published with the consent of the Home Office. Sir Percy Sillitoe retired from the Security Service and went to run a sweet shop in Eastbourne. The book supplemented his income from selling fruit bonbons.
Sir Vernon Kell, the first director-general of the Security Service, left a large memoir which his wife subsequently passed to the author, John Bullock, and which was the basis of a book published in 1963 and entitled "MI5". Since then there have been several other books, two of which were written by the Security Service. In the wake of the Klaus Fuchs, Nunn May and Bruno Pontecorvo cases the Security Service decided that it was time to do a little public relations exercise. One of my constituents was authorised to talk to an author, Alan Moorehead who subsequently wrote a book called "The Traitors". It came directly from the files of the Security Service. Another book, "Handbook for Spies" by Alexander Foote, was ghosted by a Security Service officer, so there is nothing new about the Security Service sponsoring or writing books.
Memoirs are interesting. Two wartime officers, Derek Tangye and Stephen Watts, wrote memoirs of their work in the Security Service. Neither of them, and certainly not Derek Tangye, sought permission to do so and nothing was done about them. In the postwar period three wartime double agents wrote their memoirs. Lily Sergueir wrote her account of being a double agent during the war, as did Dusko Popov. Neither sought permission and the Government took no action against them.
Eddie Chapman, on the other hand, who has had a colourful career as a safe cracker and who parachuted twice into this country, was prosecuted immediately after the war for selling his story to a newspaper. The newspaper, the journalist who received his information and Eddie Chapman himself were prosecuted at the Old Bailey. When the judge had heard the evidence of Eddie Chapman's MI5 case officer, he said that although he had to find Chapman guilty he regarded him as the bravest man that he was ever likely to meet, and fined him a nominal sum.
In more recent years there have been two other major contributions to literature on the Security Service. One was authorized—the memoirs of Lord Rothschild. The other was not, initially, authorised and was an important precedent for my amendment and new clause. It was the case of J. C. Masterman in 1972. He had retained a copy of the wartime history of his XX committee, on which he had served from January 1941 through to the end of the war. At the end of the war, he was commissioned by the director-general of the Security Service to write a detailed account of the work of the XX committee and the double agents that it had run.
J. C. Masterman attempted fairly continuously from the 1950s to 1972 to have the book published. In his dotage, and having taught a large proportion of the Cabinet of that time, including the Prime Minister and the Foreign Secretary, he announced that he was definitely going to publish because he had made an agreement with the Yale University Press and, come hell or high water, he intended to go ahead with it. On that basis, the Government caved in and came to an arrangement with him which is well worth looking at because it is a fascinating precedent in the matter of copyright. Because 1057 of the bust-up between Masterman and the British Government, the Government imposed Crown copyright 1972 on the book and shared the royalties, as they do to this day, with J. C. Masterman.
As for the Peter Wright book, whatever one says about books of this kind, they will continue to be written in future. The only question is whether this country and the security authorities will have any influence over their contents. Peter Wright exempted himself from the strictures of the Official Secrets Acts, not merely by moving abroad but by taking Australian citizenship. So the British taxpayer had to endure the spectacle of the Cabinet Secretary going to Australia—club class—with a team of lawyers and had to watch every day what was or was not in the British national interest being fought out in an Australian court before an Australian judge with an Australian defendant. There were no surprises about the outcome of that particular issue.
I do not seek to defend what Peter Wright did, but I draw the attention of the Committee to the effort that he made in offering to delete any material that the authorities regarded as sensitive. Individuals who have served their country well for many years can be trusted in very large measure not to spill the beans and give away secrets that jeopardise current operations and put people's lives at risk. That really does not happen.
I speak for one or two other Back Benchers when I say that when hon. Members have tried to acquaint themselves with the details of the work of the Security Service—not operational details, but the policy and principles behind the work—to he stopped dead in their tracks when told that a person of enormous experience, having served in the Security Service, should not be allowed to come to the House to explain and to answer questions is profoundly offensive not only to hon. Members but to the former member of the Security Service involved.
I have described some of the precedents relating to the Security Service. I seek the indulgence of the Committee to turn to a few of the precedents set by the secret intelligence service because that, too, has a rich literary history.
§ Mr. Gorst
Does my hon. Friend agree that another consequence of what is now happening is that the more one restricts the availability of something, whether it be alcohol or information, the more one increases its price? If it is necessary to sell information or alcohol to people abroad because it is impossible to sell it at home, I suspect that in both cases the price will go up rather than down and although the supply is restricted it will remain available.
§ Mr. Allason
I recognise what my hon. Friend says. This is no new phenomenon—it is steeped in time. Nor is it actually a matter of price. Going back to the principle of the duty of confidentiality and its role in the civil law, my hon. Friend will be aware of the case of Anthony Cavendish, who was threatened with civil proceedings under the duty of confidentiality and who, to circumvent that, decided to give away copies of his book because the Treasury Solicitor could take absolutely no action against that unless there were to be an Official Secrets prosecution—which, as we all know, is somewhat unlikely.
The literary background of the secret intelligence service is worth going into. The first major books written on the secret intelligence service immediately after the first world war were written by Henry Landau. They were 1058 published in America, only one volume being published in this country. Henry Landau was a South African living in America and he started the ball rolling. There was very little after his revelations of the Secret Intelligence Service's operations in the first world war until shortly before the second world war, when Sir Compton Mackenzie was prosecuted for revealing various desperately secret details such as the fact that the chief of the secret intelligence service was known by the letter "C".
As was pointed out in Committee when the Security Service Bill was being debated, the judge observed that if it was so deadly secret that the chief of the secret intelligence service was known as "C", why had he not changed it to "D" or "E" and had there not been some 20 years for him to do that?
The key to the Compton Mackenzie prosecution, however, is the little-known fact that the deputy director-general of the Security Service at that time not only authorised publication of the book—he was a great friend of Compton Mackenzie—but was himself a somewhat vain individual and was terribly flattered by the references to himself. This was part of the reason, I suspect, why the prosecution did not press the case very hard and why Compton Mackenzie, although convicted, was given a very small fine.
§ Mr. Tam Dalyell (Linlithgow)
I may have misunderstood the hon. Gentleman but I hope that he was not calling Compton Mackenzie a vain individual. I knew him very well and he was not vain.
§ Mr. Allason
No, I was not suggesting that. The then deputy director-general of the Security Service was a very vain individual and he was terribly flattered by what Compton Mackenzie had written, hence his motive in authorising this particular disclosure and hence the appalling mess that the Government got themselves into at the time.
§ Mr. Dalyell
The hon. Gentleman must be a little careful in going into this particular example because Compton Mackenzie used to hold court in his house in Drummond place in Edinburgh and told, at some length, all who would listen that he felt that he was being got at on personal grounds, and that much of the case was connected with issues of personality rather than with the prosecution of the law.
§ Mr. Allason
That may be so. The fact remains that he was convicted and fined.
Since the second world war there has been a rich history of literary endeavour by former secret intelligence service officers. I mention in passing Hugh Trevor Roper, Professor A. J. Ayer, Graham Greene and Malcolm Muggeridge. I do not believe that any of those people ever sought permission to write about their experience in the secret intelligence service.
Two others wrote about their experiences—Philip Johns and Professor R. V. Jones. Professor Jones was given clearance to write his contribution. Perhaps the most remarkable one—and this has echoes of Peter Wright—is the experience of Leslie Nicholson. He applied to his chief, when he discovered that his wife was dying of cancer, for financial support in order to hospitalise her in America. The chief at that time declined his application and said, in effect, "The best that we can do is to commute your pension"—a remark which will have a familiar ring to hon.
1059 Members—so his pension was commuted and the book was published under the pseudonym John Whitwell. That book was not prosecuted in 1967 because the Government had advance warning that another senior British secret intelligence service officer—the former head of station in Washington, H. A. R. Philby—was about to put pen to paper with "My Silent War". That is part of MI6's experience. In short, there is nothing new about intelligence officers writing their memoirs, and I believe I am right in saying that at the launch party of "The Ultra-Secret" by Fred Winterbotham, almost the entire membership of the D-Notice committee was there. They may have looked glum, but they were there.
The issue of intelligence officers writing books will not go away. It will be with us for a long time and if the Secretary of State believes that people can be deterred from writing legitimately about their experiences by threats of prosecution, I do not believe that to be the case. Indeed, my understanding of the vibes in the publishing business is that publishers are anxious to get their authors prosecuted because that seems to be one way to assure a world-wide best seller.
In America, a body known as the publications review board has worked extremely well. Most former directors of the Central Intelligence Agency have written their memoirs. The sky has not fallen in on north America in consequence. Recently, the Comte de Marenches, who was the head of the French secret intelligence service, wrote his book and, so far as I know, the sky has not fallen in on Paris. It is a legitimate exercise.
I would take the argument a step further. Is it not worth while, as we have public servants who develop considerable talents in their subjects and gain great experience, for the taxpayer and the public to gain some of that experience? After all, they have subsidised those people for many years. The best example of that must be the recent book "Lust for Knowledge" written by Mr. Roosevelt, who spent about 30 years in the middle east as a CIA officer, who has gained a great wealth of experience and who has a particular perception of events in the Lebanon. The world is a richer place for his book. There are no damaging disclosures in it. Apart from the integrity of the individual, he had a publications review board to which to submit his manuscript. There are a few minor interesting details, such as the fact that he is the third CIA chief of station in London successfully to write his memoirs. But apart from those details, there is nothing of operational significance and nothing to put lives at risk. In my view, the United States was wise to take advantage of that system.
When my right hon. Friend the Secretary of State discussed the background to the post-war history of the Security Service, there was one case on everybody's lips. We resisted going into that case because of the passage of time. But it is a key to what is before us today because only one document has ever been written officially and placed on the public record by the Security Service. It is a document which can be used as a sort of acid test for the integrity of the Security Service.
I refer to the White Paper on the Burgess and Maclean defections. I will not go into the details of the problems that were involved in that case, but the official version said 1060 basically that Burgess and Maclean disappeared and were not noticed missing until a Monday morning. The reality is that Burgess was spotted on a Saturday night leaving this country and that an immigration officer, having seen Burgess get on the SS Falaise, telephoned Leconfield House, the headquarters of the Security Service, where a conference was then under way on the fifth floor at which the case officers involved were discussing how they would develop the interrogation of Maclean on the Monday morning.
When the telephone call was received, a senior officer was dispatched to go home, collect his passport, go to the airport and fly to France, and intercept Burgess as he got off the ship. The ship was not due to dock until midday, so there was every opportunity to stop Burgess in his tracks. The senior officer went home, got his passport went to the airport, realised that his passport was out of date and went back to Security Service headquarters. Frantic telephone calls were made to try to revalidate the passport—and we know what happened to Burgess and Maclean.
I relate that story not to pour scorn on the Security Service. Many of us have had small problems with our passports and with validating documents and so on. The significance of the story is that the Burgess and Maclean White Paper is one of the most disgraceful documents ever to have been put on the public record, and it was penned from start to finish by the Security Service. It contains no fewer than 17 direct errors of fact. Hon. Members will not be surprised to learn that the officer who went home and whose passport was in a mess was subsequently made the head of MI5, went on to head another organisation and later received a knighthood.
Mr. Eric S. Heifer (Liverpool, Walton)
The hon. Gentleman has a great deal of information which he could not have come by out of the blue. God did not send a message to him. He obviously spoke to certain people. So detailed is his information that the people with whom he spoke must have been near to or in, or surrounded by people involved in, the Security Service. That is fine. But is he aware that each one of those people—because the information might be considered damaging, certainly to the Security Service—could find themselves under the Bill being prosecuted and then perhaps in prison? Indeed, I am not certain that the hon. Gentleman is not in that position himself. I fear that under the Bill, by disclosing such matters in this Chamber, he could find himself in real difficulty. I am fascinated by his speech. It is marvellous stuff. I have read his books and I have always thought that he had close connections with certain people. I am not saying that there is anything wrong with that.
§ Mr. Allason
I am grateful that the hon. Gentleman does not think anything is wrong and I do not want to feed his paranoia. An enormous amount of information is available from public sources. I find it somewhat distressing, as an amateur historian who has spent some years researching these matters—much of it from open sources and a lot of it abroad—that the hon. Gentleman should have made that sort of intervention. The fact that one has taken trouble to research a subject should not be interpreted as sinister. I shall not make the argument for ignorance, but—
§ Mr. Allason
I am not paranoid. I believe that there is too much secrecy in this country. Only last week I received a letter from the Ministry of Defence informing me of the fact—as yet undisclosed—that two members of the armed services had defected from this country. The letter said that further details of the cases of Major Richard Squires and Robert Patchett could not be disclosed for reasons of confidentiality, although they are now listed as defectors. I despair of the attitude of secrecy in this country.
There is one acid test of the integrity of a security or intelligence service which I do not believe that my right hon. Friend the Secretary of State has made clear. From 1945 to 1972 the United Kingdom did not receive any defectors. The acid test of the integrity of a security service is that if we do not receive Soviet defectors there is something wrong with the system. Thereafter we received Oleg Lyalin. Members of this Committee, I am sure, will be reassured to know that the ability to run a successful case, such as the defection of Oleg Gordievsky, is an indication that all is well—it could be a lot better—within the security and intelligence community.
My amendment and new clause will end the practice of the D notice committee of restricting the rights of authors, which in my experience is long overdue. For anyone who says that the D notice committee protects security, I will end with the following anecdote. Peter Laurie, who wrote a book entitled "Beneath the City Streets", submitted his book to the D notice committee in the hope that material that jeopardised security would be deleted. The manuscript, however was returned to him without any changes. When he asked why no changes had been recommended, it was explained to him that to point out to a journalist where the breaches of security lay would itself be a breach of security. Peter Laurie is no off-the-wall hack or reptile. He is a distinguished journalist who became an editor of several magazines, including a computer magazine. That surely makes the case for a publications review board. Such a system works everywhere else in the world and it is high time that we had one in this country.
§ Mr. Michael Foot (Blaenau Gwent)
The hon. Member for Torbay (Mr. Allason) has made an important contribution to our discussions. He has generally illustrated how hopeless it is to try to deal with this problem by the Government's proposed methods. My right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) at the beginning of the debate posed some direct questions to the Minister about what may happen if this clause goes through in the form presented, to which he received no satisfactory answers. We shall, therefore, be waiting to hear what the Minister says in reply.
I believe, too, that questions going back over the past 10 or 20 years or more and covering the entire question of the publication of information about the Security Service are important ones, which the Government are attempting to deal with by an absolute blanket suppression. The hon. Member for Torbay, if he has done nothing else, has illustrated what a far-reaching departure that would be from the present operations. The Government may say that it is a good thing to depart from the way in which the Government have been dealing with these matters in the past few years. Of course, there is something to be said for that, because no one in their right senses could possibly say that the Government—especially under the direction of the Prime Minister and the Law Officers—have dealt with 1062 those questions in a sensible, sane and intelligent way. The Government have cost the taxpayer huge sums. They have reached the end of the proceedings and some eminent judges have come out against them on the main way in which they were operating the security services.
The way in which the Security Service has been operated over recent years has been completely unsatisfactory and, naturally, if the Government intend to introduce a new Official Secrets Act, they should think of some reasonable way of dealing with it. They should carefully consider the recommendation of the Franks committee and others. I know that it is outrageous to suggest this to the Committee, but the Government could even have listened to the debate that we had on the White Paper. If they had incorporated into this Bill some of the major criticisms that came from both sides of the House, they would not be confronting the Committee with such a hopelessly unworkable clause.
The hon. Member for Torbay has shown that the way in which the Security Services have dealt with this question during the past 10 or 20 years—possibly ever since 1911—is by way of a number of charges and counter-charges. When members of the Security Service have broken their undertaking or done something that the Government did not like, other sections of the Security Service have been incited to answer them in one form or another. During a considerable period, we had, for instance, what was known as the Chapman Pincher method of dealing with those problems. Sections of the secret service were using such journalists as Chapman Pincher, who were prepared to be used in this way, to deal with these problems, which is entirely unsatisfactory. The Government, however, were prepared to do that for a number of years. I believe, so unworkable is this clause, that if the Government attempt to push it through in this form, all they will get is a recrudescence of such attacks and counter-attacks by members, or past members, of the secret service, and the new situation would be no more satisfactory than the previous one.
The hon. Member for Torbay has proved conclusively that the Government are seeking to place a blanket suppression over an entire sector where previously no such suppression was even considered and where, indeed, they had discovered quite different ways of dealing with it. I believe that on that ground, too, this clause is unworkable.Even if it were applied to the present situation, it would soon break down, because different sections of the Security Service would have an interest, as they have in the past 10 or 20 years, in getting their story into the public domain and thereby breaking down the protections.
My right hon. Friend the Member for Birmingham, Sparkbrook put it most forcibly and I do not wish in any way to depart from his direct questions to the Minister. It must be asked, however, what will happen to the Member of Parliament who was approached by someone who, under this provision, would be breaking his confidentiality undertaking. That is an important aspect of the matter. On Second Reading Duncan Sandys was referred to in that regard, because, I suppose, that was the classic case. As I understand it—if I am wrong, no doubt I will be put right—the Government are now making illegal what happened in the Duncan Sandys case—that is to say that somebody in the secret service or associated with it, who gave evidence or information to a Member of Parliament, who 1063 in turn wrote to the Minister—as Duncan Sandys did—or raised the matter in the House, would be committing a prohibited or illegal act. If that is so, as I believe it is, it is an extremely serious development. It is associated with the idea that there is no public interest defence. If a public interest defence were written into the Bill, there might be the protection for the Member of Parliament, for Duncan Sandys to say, as he did, that the matter was in the public interest.
I remember those days well because I was working in Fleet street. Although the claim did not get to a court of law, in the end the matter subsided after it had gone to the Committee of Privileges and had been generally discussed here. The reason why Duncan Sandys, Winston Churchill and the others associated with them could sustain their case was mainly because overwhelmingly people could see for themselves that it was in the public interest that such a matter should be aired.
All the attempts of Hore-Belisha, the Minister for War at the time, to prevent the matter from being brought into the public domain injured nobody but himself. Undoubtedly one reason why he was excluded from Churchill's Government during the war—there may have been other good reasons—was because Churchill remembered how he behaved in that case.
It is extremely important to discover whether the Government are attempting to intervene with the sort of safety valve which operated in the Duncan Sandys case. I should like an absolutely clear statement from the Minister, who is nodding his head, that just as the Sandys case could be aired in 1938, so it could be under this legislation. That is of great importance to us.
I have been reading the background material to the Duncan Sandys case. Churchill had much to do with it and was extremely interested in whether his sources would be protected and what action might be taken against him. Over the preceding four years Churchill had received a host of information similar to that which Duncan Sandys brought out into the public domain. Some of it was the very information which enabled Churchill to make a more authoritative case about what was happening in Europe than most members of the Government of the day.
If anyone looks at the Martin Gilbert book which discusses this period, they will find the fascinating footnote on page 953 about what Churchill did after the Duncan Sandys case. Churchill did not take the frontal position in fighting the Government of the day because he wanted to preserve his position and have followers among the few Conservatives who were voting against the Chamberlain policy. I have discovered only recently that at the conclusion of the whole Sandys case—people have never noted this before—Churchill wrote on 1 September an anonymous paragraph in the Londoner's Diary of the Evening Standard, the paper on which I happened to be working at the time.
What he published is extremely applicable to the whole operation of the Official Secrets Act. No doubt he had it inserted in association with Lord Beaverbrook, the owner of the Evening Standard. Despite all their differences on many other matters, Beaverbrook was naturally eager that Churchill should have his say in conclusion on this matter, although he did not want to put his name to it. Churchill wrote: 1064Although the report of the Sandys' case is long delayed and the issues are over-clouded by larger matters, it is well to repeat and inculcate the definite principle upon which Parliament, the Press and the Public will unite, namely, that the Official Secrets Act was intended for spies, crooks, traitors and traffickers in official information, and should never be invoked unless there is a prima facie case on these lines against anyone, be he journalist, Member of Parliament, or merely man-in-the-street.That was Churchill's definition in 1938—a dangerous moment in our history—of how the Official Secrets Act should be properly limited in its operation.
If the Government had any respect for those traditions, they would have incorporated that principle into the Bill which would have separated absolutely what could be done properly under the Act and what was forbidden. If the Government acted on Churchill's recommendation, the Bill would be different. So clear is the contrast between what happened then and what happens today that the Bill might be called the Winston Churchill (Retrospective Criminal Conviction) Bill. In other words, if the Bill is passed, it will prove how shocking, unwise and outrageous the action of Churchill and Sandys was at that critical moment in our history.
It may be said that the Government and circumstances were different in those days. In those days in the House of Commons the Government had a large majority. Churchill was in a tiny minority and could hardly say what he wanted, although he sat on the same Benches as hon. Gentlemen who will move amendments shortly. In those days the Prime Minister would not listen to any representations made from any quarter, and had eased or thrown out of the Cabinet a whole list of his eminent contemporaries. In those days the Prime Minister had a House that was absolutely subordinate to his will, and the House of Commons was prepared to pass any measure he liked to present, even one as absurd as the Bill today. That was the Parliament of 1931-1939—the most wretched, evil, shameful Parliament in British history.
§ Mr. Foot
The Labour party opposed from these Benches. It was from these Benches that Arthur Greenwood spoke for England and that the vote on the Adjournment was put on the Order Paper in the Norway debate which led to the destruction of the Chamberlain Government and placed in power Churchill, who abided by these principles.
I ask the Government to take the Bill away and re-draft it in conformity with the traditions of real civil liberties, not only as they are presented, as they have been so forcefully, by my right hon. Friend the Member for Sparkbrook and others from this side of the Committee, but by the whole Churchillian tradition on the Government side of the Committee. Every true supporter of that tradition will vote with us in the Lobby tonight.
§ Mr. Richard Shepherd
I propose to speak to amendments Nos. 14 and 16.
In clause 1(1) the Government seek to strike back at the courts, common sense and common law. They are trying to justify and remedy the independent judgments of most of the world. It states clearly that a person who is or has been a security or intelligence services officeris guilty of an offence if without lawful authority he discloses any information.That is not a new proposition to the Committee, because 1065 it was the subject of the "Spycatcher" case. Indeed, we could almost call this the "Spycatcher" clause. It is the principle that the disclosure of any piece of information, no matter what it is, is an absolute offence. My amendment and those of my hon. Friend the Member for Thanet, South (Mr. Aitken) and the right hon. Member for Morly and Leeds, South (Mr. Rees) are an appropriate way for a democratic House to approach the contentions of Government. The Government have made this proposition in almost every court anywhere—in Australia, our High Court, the Court of Appeal and the House of Lords—and no one has accepted it.
It is true that our former colleague, the present European Community Commissioner, Sir Leon Brittan, echoed the view of the courts when he said that the duty of confidentiality is unexceptional and correct. I feel sure that no right hon. or hon. Member dissents from the proposition that confidentiality and the duty to observe it is unexceptionable and correct. Our interest is in how one tests that duty. Are there extraordinary cases or circumstances in which that duty is superseded? I am certain that every one of us, and the courts, by and large, recognise the exception of triviality. Therefore, the Security Service officer who confides to a friend that he has been given a gold watch for 25 years' service commits no great crime. He has revealed information without authorisation, but it is so trivial that prosecution is not justified.
In clause 1(1), the Government assert that making such a disclosure is a heinous offence and that the entire edifice of Government confidentiality will collapse if the confidence that a gold watch has been received is revealed. The Government go beyond not wishing to prove in the courts that damage has been done. The very suggestion that a gold watch has been received is deemed an absolute crime, for which there can be no defence—not the defence of triviality.
I do not believe that triviality really concerns the Committee, so I turn to serious matters and to the possibility that a crime of iniquity has been committed. In trying to give relief from the Government's contention, we have tabled the third group of amendments, but in examining clause 1(1) we are scrutinising the Government's proposition that they have trailed and trawled in the past. I call it the "Spycatcher" contention, but perhaps I should name it the Armstrong contention.
Having wrecked Robert Armstrong's career and public esteem in Australia, the Government immediately gave him a peerage and elevated him to the House of Lords. In his maiden speech on the Bill's Second Reading there, Lord Armstrong retrailed the Government's tired, worn and very contentious arguments, saying that no servant within the security services may ever reveal anything. He tried to advance that proposition in Australia, and again in the House of Lords. The Government tried doing so in the High Court, the Court of Appeal and the House of Lords. The High Court said no, the Court of Appeal said no, and the House of Lords also said no.
The Government said that they would listen to any arguments made following publication of the White Paper. Now they say that the House of Commons does not really matter in all of this. For 300 years, we have entrusted to the High Court and to the other courts the duty of weighing up what is right and what is not. We are talking 1066 about the common law of England. Can one enjoin anyone to an absolute duty of confidentiality in connection with crime, fraud, or the destruction of parliamentary democracy?
What do the Government say? They say that one can demand such confidentiality. Clause 1(1) uses the wordsis guilty of an offence if without lawful authority he discloses any information.In amendment No. 14, the right hon. Member for Morley and Leeds, South and my hon. Friend the Member for Thanet, South and I introduce the concept that the Government must prove that damage has followed from disclosure. I commend to the Committee an examination of that concept and a rejection of the Government's nonsense that it is not a matter in which right hon. and hon. Members ought to intervene.
§ Mr. Heffer
Will the hon. Gentleman say what he means by "damage"? Damaging to whom? Does he mean damaging to the Government, or to the security of the nation? I can imagine a Government making out that any statement is damaging to them. However, if one can equate damage with the interests of the nation, the individual has a right to make such a disclosure.
§ Mr. Shepherd
I am grateful to the hon. Gentleman. What concerns the Committee in evaluating the propositions of the Executive or of the state is to whom such damage is done. Clearly the damage must be to the interests of the nation. The Government have determined, rightly, that it is a jury that must determine that. Therefore, we are considering damage to the interests of the nation. Using my example of the gift of a gold watch, clearly no jury will accept that a former or serving security officer disclosing that he received a gold watch merits a possible two years' imprisonment. Similarly, a jury considering whether divulging certain information is necessary to our functioning as a liberal democracy—one cites the example of Peter Wright—may be of many conclude that there is no merit to the defence.
If officers try to undermine a lawful and legitimate Government, it is clearly in the interests of the nation's citizens to know about it. No judge has said otherwise. Even Lord Griffiths said that, however remarkable or remote they may be, he cannot conceive that, in circumstances in which an employee of the state is in possession of such information, and tries following through all the lines of authority but can find no remedy, that citizen is not relieved of the duty of observing absolute confidentiality and of alerting the general public of the danger confronting society.
In clause 1(1), the Government say, "That is all nonsense. We do not like the Court of Appeal or the House of Lords. We do not like anything—and, anyway, the House of Commons is too dumb to understand our contentions." I would not speak so vehemently if we had not been over this ground before. On 15 January 1988, we were presented with a ridiculous White Paper that is a caricature of decency and liberal democracy. We must tolerate also the arguments of the Home Office, which is informed only by its own press releases. The Home Office no longer reads its own Bills.
The Home Office imagines that right hon. and hon. Members are dumb enough not to read the substance of the legislation that courts interpret. The courts are interested not in the dialogue we may exchange in Committee, but only in the legislation that appears before 1067 them. The most skilled barristers and articulators of a case will argue over the words contained in legislation enacted by the House. That is the danger. The Government no longer appreciate that there is a distinction to be drawn between Home Office press releases, which caricature the meaning of an amendment, and the words of the Bill.
Clause 1(1) asserts that a public servant may never release any information without authorisation, even if to do so will reveal criminality, fraud, the deception of the House, or the abuse or undermining of our democratic principles—that never in any circumstances may that be done. We have been arguing against that course, not just over the three weeks since the Bill's Second Reading, but for the past year. However, the Home Office asserts that it is nonsense, and the Government—through the Attorney-General and through every other office that appears before the courts—maintain that their arguments are respectable.
The Government also say that, in the last analysis, the courts will judge. But there have been court judgments, and still the Government say, "We do not like the courts' judgments, and we shall legislate accordingly. After all, the judges say that in issues of national security, it is the duty and responsibility of the House of Commons to legislate and to give guidance."
However, when it comes to matters that touch on the common law of the United Kingdom, the duty of confidentiality, while correct and lifelong, cannot be absolute in the particular. In some circumstances, such confidentiality will be against the public interest and the public good. The Committee should be mindful of that, and I hope that it will accept the amendments in the names of the right hon. Member for Morley and Leeds, South and of my hon. Friend the Member for Thanet, South and myself.
§ Dr. David Owen (Plymouth, Devonport)
I presume that I ought to declare an interest, as I suppose that I am covered by the words, in clause 1(1)(b):a person notified that he is subject to the provisions of this subsection.I have not yet been notified, but imagine that I will be, when the Bill becomes law.
The importance of clause 1 is that it deals not just with the Security Service but with the security and intelligence services. That is extremely important. For the first time, we are dealing with a new category of people. The Government have decided not to declare those people in the way that has been done in the past. I believe that that is the right decision. It nevertheless means that we must be mindful that we are legislating for a different group of people. We are also legislating, for the first time ever, in a way that could jeopardise those people's freedoms in a very basic fashion. The clause asks us to accept that those who work in the security and intelligence services should be treated entirely differently from other servants of the Crown, and it deserves, at the very least, careful scrutiny.
I think that it would have been more in keeping with the spirit of the legislation if either the Foreign Secretary or the Home Secretary had attended the debate. I mean no rudeness to the Minister, but the fact is that Ministers of State do not deal with these matters in either the Home Office or the Foreign Office. They are dealt with by the Secretary of State, and rightly so. The Secretary of State 1068 should be answerable to the Committee for these extraordinary powers, and should explain to us why he considers them necessary.
I may not carry every hon. Member with me when I say that there is, in my view, a strong case for treating people in the security and intelligence services differently. People who enter those services are indeed in a different category, and I would be prepared to accept clause 1 as drafted if it included four essential safeguards.
The first is, of course, a public interest defence. The right hon. Member for Blaenau Gwent (Mr. Foot), in an important intervention, reminded the Committee of what had been done in the past, referring to the pre-war years. I do not think that passing this measure would make much difference: if people thought that the nation's security was under threat, I believe that they would conduct themselves as they had in the past, regardless of the legislation. It is worth remembering that when Ralph Wigram, head of the central department in the Foreign Office, made the decision—agreed, incidentally, by his superiors in the Foreign Office—to begin the systematic briefing of Churchill, he would have made the same decision even if this ludicrous piece of legislation had been on the statute book, so dire were the circumstances.
The Prime Minister—who, undoubtedly, has personally rejected a public interest defence—should ask herself, believing as she does that that period showed Churchill's greatness, whether it was right to introduce legislation that would have given those public-spirited men no defence in law for their actions. What they gave Churchill was not minor information, but the deepest intelligence known to the Government of the day. Having made their decision on 26 October 1934, they sent Churchill the first significant report, describing how the Nazis were aiming to have 1,000 war planes in two years' time. They went on to give him the transcript of a long conversation between Hitler and Admiral Erich Raeder, dated June of that year, in which the Fũhrer demanded complete secrecy about the construction of U-boats.
Those were not just reports from the ambassador in Berlin—a fat lot of use a report from him would have been at that time. They were intelligence reports, which over the years were systematically diverted towards Churchill. We only really knew about it when another member of the central department, Michael Creswell, revealed—nine years after Churchill's death—the extent of the information. In a wonderful description, he said that, sitting in the Box under the Gallery, he could not understand why the Ministers at the Dispatch Box did not realise the basis on which Churchill had obtained all the information. He concluded that the only reason was that people like Hoare and others simply had not read their own briefs. Every now and again Churchill had to make a deliberate factual mistake to cover up the fact that at that time he was probably the best-informed Member in the House, better informed than any member of the Cabinet.
If the legislation goes through, if those circumstances ever returned people who gave such information would never be able to claim in court that they had acted in the public interest. That is ludicrous and not a single Tory Member should vote for it, but not a single Cabinet Minister is here to listen to the arguments.
What is happening to the House? What is wrong with it? Why are we allowed to pass such legislation with hardly any serious scrutiny? I am delighted to see the hon. Member for Epping Forest (Mr. Norris), whom we 1069 welcome back to the House. I said a few rude things to him during the by-election campaign, but judging by the noises that have come from him it seems that he also objects to the legislation, in which case I must take it all back. It that is so, in the first few weeks of his return to the House he will have exhibited a healthy independence, as befits the Member of Parliament for his constituency.
The right hon. Member for Blaenau Gwent also mentioned the outrageous conduct of a former Member of Parliament for Plymouth, Devonport. There is some sympathy between the right hon. Gentleman and me in this regard. Hore-Belisha's conduct in the Duncan Sandys case was indeed outrageous, and was undoubtedly the reason why Churchill never forgave him.
If the Government ask us to pass the clause, they must concede the case for a public interest defence. We cannot place a blanket ban on those who work for the security or intelligence services, and provide no redress through the courts when those people believe that they have acted in the public interest. Such a defence is particularly pertinent to that category of people, and to clause 1.
Secondly, as suggested in new clause 6, tabled by the hon. Member for Torbay (Mr. Allason), there is no doubt that the House must be satisfied that an independent mechanism exists to vet the memoirs of members of the security and intelligence services. It is not enough for that to be left to the Government of the day, because they will be making judgments about the disclosure of information that affect other Governments and decisions made by other Ministers. It is possible, for instance, that a Conservative Government would not have wished for a full disclosure of what did or did not happen in the Crabbe affair. If memoirs and biographies, which will undoubtedly continue to be written, are to be properly vetted they must be vetted by a body with a measure of independence, and the House is the only authority that can be satisfied that it has that measure of independence.
That could be done formally, as suggested in new clause 6, or there could be an understanding—which has usually applied in such cases—that the Prime Minister would appoint a group of people, subject to discussions with the Leader of the Opposition. There was a time when that convention was sufficient for most Members of Parliament; I doubt whether that is still the case, and I think that we should know who will sit on such vetting bodies. It should be clear to those who write material of this kind that they are entitled to do so, subject only to an independent vetting procedure. That arrangement governs those who work in the FBI and the CIA, and we have a right to know that it would apply to those who work in our security and intelligence services.
Thirdly, such employees must have a contract of employment, which must make clear the terms on which they undertake the onerous obligation under no circumstances to reveal any information. The contract should assure them that a public interest defence is available to them, and that they have the right to go through a vetting procedure relating to the disclosure of information in memoirs.
Although provision has been made for those in the security services, those in the other category that is not covered by statute or by the Security Service Bill also need an internal procedure to allow them to bring anxieties or apprehensions, perhaps about malpractice, to an 1070 independent ombudsman or arbitrator. We have heard nothing about that. A Bill that lays a new statutory obligation on the security and intelligence services must give some satisfaction on those grounds.
In the absence of any such provisions, clause 1 deserves to be rejected.
§ Mr. Steve Norris (Epping Forest)
It is a pleasure to follow the speech by the right hon. Member for Plymouth, Devonport (Dr. Owen). He said some rude things about me during the recent by-election, but entirely redeemed himself tonight if only because he was kind enough to notice that I am here. When I asked the previous occupant of the Chair if I might be permitted to say a few words about my distinguished predecessor, he confessed to me that he did not notice that I had been away.
Happily, my absence from the House ended in December, but it is a matter of some sadness to me that the event which precipitated my return to the House was the death of our old friend Sir John Biggs-Davison, who served in the House and sat in or near the place from which I am speaking for 33 years. The hallmark of Sir John was that, however one regarded his views, one understood him to be a man of tremendous integrity, absolute honesty and loyalty to his principles. Sir John was universally well regarded, and if he were here he would listen very intently to hon. Members' observations.
I should like to speak about that extraordinary phenomenon, a second maidenhood, although I am not sure how gynaecologically, medically or politically that is possible. My successor in Oxford, East (Mr. Smith) said some kind things about me in his maiden speech. My hon. Friend the Member for Oxford, West and Abingdon (Mr. Patten) was of great assistance to me during the years when I represented Oxford, East. The hon. Member who now sits for that constituency and I fought each other in 1983 and he shadowed me for the next four years. Because of the pathetic collapse of the Alliance in 1987, he managed to take the seat from me. He and I debated matters of policy long into the night and very hard, and in all the time that I was the Member of Parliament he never descended to the level of personal abuse. I hope that it can be said that I did not do that either. I have the greatest respect for the hon. Gentleman, and from the safety of a seat which I was advised by one of my local committee members not even a chimpanzee could lose for the Conservatives I wish him every limited success in his new seat.
I shall disappoint some of my hon. Friends who suggested to me that the glittering prizes in life are withheld from those who discomfit the Government, especially if they manage to do so in a maiden speech. In this matter I have some sympathy for my hon. Friend the Minister because the position that he is bound to defend Is simply untenable.
The speech by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) was characterised by the integrity and courage that we have come to recognise as his hallmark in these matters. The fundamental rationale of the Bill is to rid us of one of the most discredited pieces of legislation on the statute book—section 2 of the Official Secrets Act. We all know that section 2 does not work, because it is so ludicrously widely drawn that it is plainly unenforcible. In the Ponting case, as hon. Members will know, a jury was invited in the clearest possible terms to convict and simply said, "This is 1071 nonsense and we will not do so." Because it is so draconian and so widely drawn, the clause is now utterly unusable and it is perceived only as a device for the convenience of the Executive.
Clause 1 seriously implies that no person who has ever been covered by section 2—no matter how old he or she may be and how many years have passed since the events about which that person is speaking—may say anything at all. That person may not reveal even a trivial matter, and that prohibition seems to be outside the bounds of any serious attempt at legislation. He may not reveal anything serious, even if it exposes an illegality of the kind spoken about by the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley). Both sorts of information are automatically proscribed, and if a person should make such information known to us he will be the subject of a criminal prosecution. That is nonsense.
Some of my hon. Friends asked me when I intended to speak in the Chamber. Not surprisingly I said that I proposed to speak on the Bill. They said, "Ah, yes. It's nonsense, isn't it?" They are right. Clause 1 is dangerous nonsense, and the only excuse for it is that it provides a convenient tool for the Executive. The only circumstances in which it can be used, abused, are those in which the Executive simply do not want the public at large to know. That is dangerous. We have heard about the information fed to Churchill before the last war. The right hon. Member for Devonport spoke about that, and he will forgive me when I say that many of us know about that.
§ Mr. Norris
I defer to my hon. Friend. I noted his intervention when he asked what Labour was doing at the time. I hope that I can carry my hon. Friend with me when I say that, with hindsight, there is no doubt that the information supplied at that time was vital in the ensuing conflict and in preparing the nation for that conflict. It provided Winston Churchill with the tools that were needed to enter the fray when he was called upon to do so.
I urge my hon. Friend to listen carefully to this important debate. Few debates are more important and the House should consider this not as a partial issue because, however incredible it may seem, the Conservative party will not be in power for ever. Since returning to the House I have been tempted to the view that for ever may be a long time away. This issue is about the public and the Executive.
The characteristic of conservatism, certainly the kind with which I am in sympathy, is the belief that individual freedoms are paramount and that the duty of the state is not to suppress those freedoms but to protect them. The only legitimate grounds on which individual freedoms should be proscribed are those on which there is a definable greater interest, such as national security. No hon. Member speaking in favour of the amendment has seriously denied that.
I do not in any sense deny the concept of the right to confidentiality in certain circumstances, and it is clear that for the sake of the national interest the Bill should contain such a provision. This is an important amendment, and I invite my hon. Friends to see this not as a contest between Government and Opposition or between Conservative and 1072 Labour, but as the individual against the Executive. In that context, Conservative Members will lose their credibility if they do not support the amendment.
§ Mr. Heffer
I agree very much with the hon. Members for Epping Forest (Mr. Norris) and for Aldridge-Brownhills (Mr. Shepherd), whose amendment No. 14 goes to the heart of the matter. Let us suppose that a member of the security services or a civil servant found out that things were going wrong and, in the public interest, decided that he had to make a statement and take a stand on an issue that would affect the entire nation. Under the provisions of the Bill, that person would find himself in real trouble and in prison as a result of action taken against him.
We are talking about what may be "damaging". Let me refer to the point raised by my right hon. Friend the Member for Blaenau Gwent (Mr. Foot) about Churchill. I am glad that he got round to that point because, when I first read that Churchill had been fed with information by high-level civil servants, who were responsible for the interests of the nation, I thought how right they were to do so. If he had not been fed with all that information and those matters had not been raised in the House of Commons, alerting the nation about what was going on, the country, and particularly people of my age, would have been in an even worse situation.
I now understand precisely what is meant by the word "damaging". We must consider to whom the disclosure of information would be damaging. The Government will argue that anything that can be interpreted against their interests is damaging. That is precisely how all authoritarian Governments—indeed, most Governments —tend to argue because they do not like people saying things that are damaging to them. However, the disclosure of information may not be damaging to the nation; in fact, the opposite might be true. The nation might benefit as a result of the arguments put forward by those people. Clive Ponting was absolutely right in what he did. That is why I support the amendment. Under the terms of the amendment, a civil servant can say, "I've had enough. What I'm hearing is not good enough. I'll resign and go to the people in the country and explain what has happened." However, under the Official Secrets Act, that may be considered as damaging to the Government and that person will be in real trouble. That is the heart of the argument.
The provision for a member of the security services to go to a tribunal sounds all right. The Government will say that, if such a person goes to a tribunal, he may well be given clearance, but so what? We cannot guarantee a person's right to do this and that is an infringement of people's freedom. We do not have liberty in this country simply because the Government decided to give us our liberty. No one gave us those liberties; they were achieved over the generations. We help to keep them going now, but our forefathers fought for all the liberties and rights that we now have. They did not achieve them without a tremendous struggle. We have been arguing to get rid of certain parts of the Official Secrets Act, but, in one sense, this Bill makes the position worse than it was before and that is surely not good enough. We cannot accept it because it is an infringement of our liberties.
1073 I do not intend to make a long speech. Some excellent arguments have been put forward, so those hon. Members who still wish to speak need only say where they stand on the issue. The Opposition's case is unanswerable. If I were on the Government Benches, I would do what I used to do regularly when I sat on that side and vote against my Government if I thought that they were wrong and that the nation's interests demanded that I do so. The nation's interests demand that the amendments are carried tonight.
Unfortunately, nowadays, relatively few hon. Members attend debates. That is sad. When I first came here and such issues were debated, the House would be almost full. Nowadays there is scarcely anyone here, so we cannot hear all the arguments. That is worrying. Hon. Members are like lap dogs; they trot in, vote and do not hear all the arguments. They have probably not even read the Bill. This is a sad day for democracy and it is about time that those of us who regularly attend debates, particularly debates of this kind, explain to our hon. Friends that it is their right and duty to be here, not only to express their opinions, but to hear the arguments, make up their minds and vote accordingly.
This is one of the most important Bills laid before us for a long time, apart from the rubbish that the Government have brought forward regarding privatisation which nearly gives me apoplexy when I read it. This is a fundamental issue concerning the rights of people and the interests of the nation and whether we allow secrecy to be extended even further under this Government. This Bill does not do what we had hoped; it does the very opposite.
I think that the hon. Member for Torbay (Mr. Allason) misunderstood me. I was not attacking him. I do not think that what he said was sinister. I do not believe that he is an MI5 or MI6 agent. I am simply suggesting that he must have friends who can give him information. His research is brilliant. It is important that he said what he did because it enables us to obtain information that we would not otherwise have. His contributions to our debates are important, and I hope that he will support the amendments.
§ Mr. Jonathan Aitken (Thanet, South)
I join the hon. Member for Liverpool, Walton (Mr. Heffer) in wishing that more hon. Members were present to hear the arguments. I suspect that many of our absent colleagues have the general impression that the clause, as unamended, will be effective in stopping a future Peter Wright. Many hon. Members would support such a clause, if drafted correctly, provided that it limited its objective to doing just that. Patriotic Members of Parliament do not object to the imposition of the duty of confidentiality and secrecy on members of the security services—M15 and some of the other ones that serve our country. However, the clause does not limit itself to that admirable horizon. It goes much further. The clause deals with an absolute, lifelong doctrine of eternal confidentiality at all times and under all circumstances.
That is a new-fangled doctrine. It is certainly new to our country, which traces the continuity of civil liberties from the days of Magna Carta to the days of the Churchillian tradition, amplified by the right hon. Member for Blaenau Gwent (Mr. Foot) who quoted from page 973 of the Churchill biography by Martin Gilbert. A different theme has run through our history of civil liberties from the one that suggests that there should be an eternal, lifelong duty of confidentiality. That doctrine is new to the secret 1074 service. Mr. George Young, a vice-chief of the secret intelligence service in former years, gave an interview to Mr. Richard Norton-Taylor of The Guardian some months ago, in which he said that during his years of service he had never known of an absolute doctrine of lifelong confidentiality and that it was new.
Who invented it? Almost certainly the Prime Minister invented it in the heat of the strong feelings that were generated by the Wright affair. One understands and sympathises with the Prime Minister's point of view. The trouble is that the moral point of view was legal nonsense when it came in front of court after court in jurisdiction after jurisdiction. It was not just. The Australians threw it out on its ear. Our own courts, at every level, disagreed with the notion that there is a doctrine of absolute, lifelong, permanent confidentiality.
There must be circumstances in which there are exceptions to that basic rule. There are at least three areas where such exceptions ought to exist. One of those areas relates to public policy. I refer to nothing that relates to operational secrets, past or present, of the security services but to public issues of debate that relate to the overall concept, supervision, management, accountability and so on, of the security services.
How wrong the Government have been is illustrated by looking at the saga of the BBC radio programme "My Country Right or Wrong". A totally responsible group of BBC producers looked at how our security services might be improved by certain changes in public policy. They invited to appear and take part in those programmes a number of former members of the security services. The programmes that were recorded were so anodyne that the director-general of the Security Service pinned on the notice boards a memorandum for his staff that gave the time of broadcast of the programmes and said that the security services had nothing to fear from them. The director-general of the Security Services was briefed by some of his former colleagues on what they had said to the BBC.
That was the attitude of the security services. They did not believe in the absolute doctrine of lifelong confidentiality extending to a prohibition on the right of former members of the security services to talk about how accountable Ministers should be, and whether there should be better oversight and management of the security services. They appeared to recognise that there were limits to the doctrine of confidentiality and that there should be sensible extensions to the right of freedom of speech.
That was not the Government's attitude. Who will forget the extraordinary scene when the Attorney-General rushed to the Dispatch Box on a Friday morning to announce that he had banned the programmes and had issued writs? He caused mayhem in the BBC by placing a total ban on the programmes, in observance of the absolute doctrine of confidentiality that he named several times in this statement. What happened when the dust had settled and the plethora of writs subsided? After dialogue and a good measure of common sense it was found that not a single comma or word of those radio programmes had been deleted. The only interesting fact is that almost nobody listened to the programmes or commented on them. Except to a few specialists, the programmes were very dull.
1075 6.45 pm
It is clearly a civil right of former Crown servants to use their common sense and to comment from time to time on public policy issues. The more general area of civil rights for Crown servants was superbly highlighted by the intervention of the Minister of State, my hon. Friend the Member for Oxford, West and Abingdon (Mr. Patten), during the speech of the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley). If it had been scripted by a television producer to illustrate perfectly how seriously we are trampling on the civil right of Crown servants in this matter, he could not have done better. Talk about people rushing in where angels fear to tread.
The Minister of State demonstrated clearly that a Crown servant who briefed the right hon. Member for Sparkbrook on the fact that his telephone was being illegally tapped and that his house was being illegally burgled would be guilty of a criminal offence, even though he might be able to put it right later by going to a tribunal. That is a pretty serious limitation. We are not talking about a complete fantasy. The French secret service got up to some totally illegal bombing activities when it bombed Greenpeace and others. If civil servants are not to have the right under any circumstances to talk to a Member of Parliament or a Privy Councillor about their worries, we are being unreasonable in placing these limitations on Crown servants' common sense, loyalty and civil liberties.
§ Mr. Paddy Ashdown (Yeovil)
The hon. Gentleman is making an extremely interesting point, but let me put another case to him. A civil servant might get to know of a private security firm that is under contract to the Government and that, without the statutory constraints that are laid on MI5, is operating in just such a manner. Even under those circumstances the civil servant could not bring that matter to the attention of the Member of Parliament concerned.
§ Mr. Aitken
The leader of the Social and Liberal Democrats is right. The clause that we are discussing refers to any information that is ever come across as a result of a person's employment in the security services.
§ Mr. Hattersley
The hon. Gentleman was kind enough to remind the Committee of a question that I asked the Minister of State, who is the focal point of, and who will become the star of, this debate when it is discussed in years to come. The hon. Gentleman said that the concession had been made that if my telephone was being illegally tapped and my house illegally burgled, it would be a criminal offence for a member of the security services to tell me and that it would be an offence for me, having found out that fact, to tell anybody else—certainly a solicitor. It is now put to me by those who understand the law—and I ask this question during the hon. Gentleman's speech so that the Minister of State can contemplate the matter—that were I to discover from a member of the security services that my house was being illegally burgled and that my telephone was being illegally tapped, it would be an offence for me even to tell a policeman. I think that the Minister of State ought to consider whether that would be the case.
§ Mr. Aitken
I think that I am going to go out and buy shares in companies that make handcuffs. It is becoming clearer and clearer that the special branch will be arresting 1076 a whole chain of people who have no business to be charged with criminal offences because, in one capacity or another, they are receiving information quite properly and handling it quite appropriately.
I hope that the Minister of State will not try to escape from this argument by referring to the staff counsellor. The tenure of the staff counsellor is very transient. Nobody has made that clearer than the Minister of State, who refused to write his responsibilities and role, even in the words of the Prime Minister, into the Security Service Bill. That staff counsellor can be blown away in one puff of a written answer just as he was appointed in a puff of a written answer. I have considerable doubts about whether he is in any way a safeguard to the civil liberties that we are discussing.
The argument about memoirs was ably dealt with by my hon. Friend the Member for Torbay (Mr. Allason) when speaking to new clause 6. He did his best this afternoon to turn Hansard into an illegal bestseller. I think tomorrow at the Vote Office we will need a notice saying, "Burn before reading". My hon. Friend's idea of a publications board is good. Such a system operates effectively in the United States. We should not miss the effective sanction by which the Central Intelligence Agency can, with the most punitive legal weapons, go after those who try to break the rules in definance of the publications board or whatever it is called.
We cannot allow the Government alone, without any independent involvement, to be the sole arbiter of whether memoirs are authorised. We cannot have Mr. Chapman Pincher's version, as Mr. Wright told him, being the authorised version and being allowed to be printed when Mr. Peter Wright's version is pursued in courts all over the world.
The position on memoirs is unsatisfactory. The Minister of State got into trouble on Second Reading when he was threatened with withdrawal of support by my right hon. Friend the Member for Brighton, Pavilion (Mr. Amery). The Minister of State tried to buy him off by involving the staff counsellor; he said that somehow the staff counsellor would be helpful to authors. When Mr. Anthony Cavendish approached the staff counsellor on his book he was refused an appointment, so the staff counsellor was a fat lot of good. After my right hon. Friend the Member for Brighton, Pavilion wrote to the Home Secretary to make that point. lo and behold, suddenly Mr. Cavendish was given an appointment with the staff counsellor. I understand that he met him this morning. I am not aware of what went on. I think it was a case of tea and sympathy and not much more.
The fact remains that the sudden intervention of the staff counsellor is a cosmetic device and of no relevance to the theme put forward by my hon. Friend the Member for Torbay. We have had many memoirs in the past. There is no reason why there should not be responsible ministerial or other memoirs provided they are properly vetted by an independent element. A publications board is a good idea.
§ Mr . Dalyell
I fear that Brighton, Pavilion, must be more effective than Linlithgow. I wrote asking Ministers to allow Anthony Cavendish, with whom I was much involved, to see Sir Philip Woodfield, I thought responsibly, at an early stage. That request was denied. What else has Sir Philip Woodfield done as a staff 1077 counsellor? He was a distinguished civil servant and private secretary to Ministers. What else has he done since becoming staff counsellor?
§ Mr. Aitken
When we put down parliamentary questions to find out what Sir Philip Woodfield has done and is doing it will be interesting to see the answers. Perhaps we will be told that these are security matters which we cannot discuss. I suspect that will be the answer.
The more one considers these problems the more one realises that they cannot be dealt with by the all-singing, all-dancing, all-embracing doctrine of lifelong confidentiality. That is what the clause seeks to impose artificially in a manner contrary to our parliamentary, historical and judicial traditions. We must remind ourselves that we are sent to the House not just to pass laws but to preserve liberty. We could easily adjust the clause by a couple of good amendments such as amendment No. 14 in the name of my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), the Opposition amendment or new clause 6.
§ Mr. Allason
Does my hon. Friend agree that there is a great difference between the Bill and the introduction of an all-embracing contract for present and perhaps future employees of the Security Service and all other Crown employees which they could opt in or out of? The problem is that the Bill is retrospective. It will cover people with even the most vague connection with intelligence from the first world war.
§ Mr. Aitken
If there are such people, no doubt my hon. Friend will trace them and get a good story out of them. However, he makes a serious point about contracts. We were told repeatedly by the Attorney-General that the basis of the case against Mr. Wright was that he had a contract which he had violated. When I suggested that that was wrong, I was told that I was being ridiculous and that it was an outrageous suggestion. Of course, the courts ended up finding that there was no contract and no legal relationship. We have to do better than the present laws.
The right hon. Member for Plymouth, Devonport (Dr. Owen) asked a good question. He asked what had happened to the House of Commons which, apart from a minority of Members, does not listen properly to argument. The Committee does not seem to worry about the preservation of liberties; it is not interested in amendments. The Government have encouraged that philosophy by refusing to accept any amendments to legislation on the great issue of security. They seem to suggest that it is perfect legislation brought forward by perfect legislators—a ridiculous proposition.
Something is wrong with the House of Commons. There is a strong note of unanimity in the speeches from all parts of the Committee. I hope that the message will get across to those who are listening that there is something rotten in the Government's state of Denmark in regard to the clause.
§ Ms. Diane Abbott (Hackney, North and Stoke Newington)
The major point on the group of amendments relates to the doctrine of lifelong confidentiality. A minor point is touched on in new clause 6, which was ably moved by the hon. Member for Torbay (Mr. Allason). New clause 6, which suggests the setting up of a publications review board, could be described as a job creation scheme but it is none the worse for that. Even at 1078 this late stage I urge Ministers to consider the sensible and practical suggestion for job creation in the new clause and to support it.
It is not often that we contemplate personal human tragedy, but I want to draw attention to the sad case of Sir Robert Armstrong who destroyed his standing in public esteem and his reputation for future generations by chasing off to Australia and other points west in defence of the doctrine of lifelong confidentiality. I need only quote his words from the book on the "Spycatcher" case by Malcolm Turnbull. At one point in the trial poor Sir Robert Armstrong turned to Malcolm Turnbull and said, "Don't worry about me, Mr. Turnbull, I am just a fall guy." And a fall guy is what he was—pursuing through the courts the nonsensical notion of absolute confidentiality.
In putting forward the proposal in the Bill the Government are being fundamentally dishonest because they know that the practice will continue as before and that the secrets about the Security Service that they want to be made known will get out through what can best be described as the Chapman Pincher route. Mr. Chapman Pincher has been used for years by the Government and by the security services to bring into the public domain information which cannot be brought out any other way. He was described by a leading historian as a conduit for leaks from Government Ministers. To quote:The columns of "The Express" may be seen as a kind of official urinal in which, side by side, high officials of MI5, MI6, sea lords, permanent under-secretaries, Lord George Brown, chiefs of the air staff, nuclear scientists, Lord Wigg and others stand patiently leaking in the public interest.It is dishonest of the Government to bring before us the notion of permanent confidentiality when they know perfectly well that it has been breached and will continue to be breached by what we might call the Chapman Pincher or public urinal method.
It is not clear to hon. Members what the Government's rooted objection is to the practical vetting of the memoirs of spies or members of the security services such as exists in the United States of America. It is particularly important to look at the matter seriously in the light of last week's debate, when the Government refused to take on board the idea of serious political or administrative oversight of the security services. In the group of amendments, and especially in new clause 6, we ask the Government, even at this late stage, in the interests of practicality and common sense that a few retired gentlemen who have served their country well should be able to turn an honest penny. In the interests of showing what the House thinks of the Chapman Pincher public urinal method of journalism, I ask the Government to reconsider their attitude to the amendments and to new clause 6.
§ 7 pm
§ Sir Ian Gilmour
I want to speak briefly at the end of a remarkable debate. I agree with the hon. Member for Liverpool, Walton (Mr. Heffer) that it is a pity that more people have not heard it. It used to be thought that to have the Committee stage of Bills on the Floor of the House was a constitutional safeguard—and this is a constitutional Bill —but that is no longer true. Few people hear the arguments and then the block vote is trooped in—or bussed in—and that is that. In an ordinary Standing Committee, one or two hardened sinners are allowed to infiltrate and the others have to listen to the arguments.
1079 That is more likely to produce an acceptable result than a Committee of the whole House. I am not suggesting that the Government had realised that—they clearly thought that they were doing the right thing—but there is a defect in the current procedures.
There is a defect in the Bill, too, as this debate has clearly shown. The Bill is, after all, supposed to be a liberalising measure, but anybody listening to the debate would find it difficult to see anything liberal in clause 1. As my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) said, the absolute blanket stipulation that members of the secret service or anybody who has ever been connected with them are automatically not allowed to say anything should not appear in a parliamentary democracy. The hon. Mr. Justice Scott said that the life-long duty of confidentiality was not attainable this side of the iron curtain. He was right, and the Bill should not be this side of the iron curtain either, in a number of respects.
Several hon. Members have suggested the safeguards that are needed. In his winding-up speech, my hon. Friend the Minister may not be the only boy on the burning deck because he may have one lone supporter, but he must be aware that anybody who pays attention to the Bill knows that the overwhelming opinion is that the Bill requires serious amendment. I hope that the Committee will not face a series of blanket noes to avoid a Report stage, as has happened on other Bills. The idea that no amendment will be accepted by the Government is unacceptable to the House. I am sure that that is not my hon. Friend's view.
§ Mr. John Patten
I can reassure my right hon. Friend. The Government have tabled one amendment, so there will be a Report stage as he wishes.
§ Sir Ian Gilmour
That deals with one of my concerns, but not the other. I hope that my hon. Friend does not mean that the Government will reject automatically all the other amendments.
§ Mr. Corbett
The right hon. Gentleman should not be entrapped by the Minister. If he looks at the Government amendment, he will see that it is playing with Parliament.
§ Sir Ian Gilmour
Nevertheless, the mere fact that a Government amendment has been tabled means that the Bill must have a Report stage, albeit a fairly truncated one. That does not alter the point that I am trying to make. I hope that when the Government hear the arguments which, with one solitary, but no doubt important exception, they will have a duty to pay some attention to what has been said in Committee.
§ Mr. Robert Maclennan (Caithness and Sutherland)
The Government have chosen to have the Bill discussed by a Committee of the whole House because it is a matter of constitutional importance. However much it may convenience the Government's management of business, it none the less gives a stamp of seriousness to the debate, which is not usual. But if the Bill is a matter of constitutional importance, the Government are treating it in an unusually unserious way. I add my voice to those that have already been raised in criticism of the fact that no Minister with responsibilities for these issues has been in the House for the whole debate, which has now run for 1080 almost three hours. That is treating the Committee with less than appropriate attention in a matter of constitutional seriousness.
There is a second important issue in introducing constitutional change. Bills that effect constitutional change—and they are supposed to last—should not be introduced in a partisan fashion, without a broad degree of support or change. The Official Secrets Act 1911 has been very much criticised—and rightly so—for many years, but it must be recollected that at the time when it was introduced it had broad-based support in the House. The Government, in bringing forward this Bill, have no such support. Not one speech has been made so far in the debate in support of the provisions in clause 1 which seek to introduce an absolute offence that will apply to members of the security and intelligence services throughout their lives. The fact that there have been no speeches in support of that suggests that the Government have got it wrong.
The Government should do as they did on an earlier occasion when seeking to tamper with a fundamental right —the right of those charged with criminal offences to enjoy the privilege of being tried before a jury. They put forward the proposition that there should be no jury trial for those accused of serious fraud. Eleven out of the 12 speeches in the debate attacked the idea and the Government properly scrapped it. I suggest that that would be an appropriate action for clause 1. If there had been a great inquest into section 2 of the Official Secrets Act 1911 that came up with a proposal that enjoyed broad-based, cross-party support and support in the country at large, the Government's course might have been understandable, but that is not the case.
The committee set up to examine the provisions of the Bill, under Lord Franks, addressed the issues that we debated earlier. It addressed specifically the question whether members of the security services should be absolutely responsible for information and it concluded that they should not be. In paragraph 124 of its report, the committee included specifically information relating to the intelligence and security services, information obtained by them and information about internal defence and security as being proper for the test of serious injury. Some test of harm is surely appropriate in this case, and surely the hon. Member for Aldridge-Brownhills (Mr. Shepherd) is right in seeking to point to the ridiculous position that the Bill creates when, under the disclosure of the most innocent information about the conduct of the Security Service, an individual is capable of being subject to prosecution.
I do not think it right that the criminal law of this country should stray so far from reflecting the moral perception of people in this country that it makes those in public service—the Security Service is an important arm of public service—guilty of offences of that kind.
In a trenchant leader—one of many attacking the proposal—the Financial Times stated:It cannot be criminally wrong to point the finger at iniquity.But that is what the clause would achieve or seek to achieve because there is no prospect whatever that public-spirited members of the security services will be deterred from pointing a finger at iniquity because of this clause.
What the Government are now doing will be done in vain. This is simply a foolish response to defeats sustained in courts in this country, first on appeal before the House 1081 of Lords and in other jurisdictions around the world. It does not reflect the Government's considered judgment of how to strengthen the Security Service—it reflects the petulant response of the Prime Minister, made in the heat of the embarrassment about the Wright affair. There are lessons to be drawn from the Wright affair and we shall turn to some of them in our discussions on later amendments.
§ Mr. Dalyell
On the question of iniquity—the hon. Member is a lawyer and I am not—does this not overturn or at least damage the case of Gartside v. Outram, in which there was a judgment that in no circumstances can there be confidence in iniquity. I should like a legal opinion from the Minister or from Home Office civil servants on the effect of the classic 19th century case of Gartside v. Outram in relation to iniquity.
§ Mr. Maclennan
I wish that I could help the hon. Gentleman, but I am not sure that my legal knowledge extends as far as that with which the hon. Member for Linlithgow (Mr. Dalyell) credits me. Perhaps we should invite the Government to bring the Attorney-General to the House to answer that question because then we would at least have someone who is involved in such matters to advise the House.
§ Mr. Richard Shepherd
I am sure that if the hon. Gentleman reflects for a moment he will remember that the judgment was that one could not enjoin a citizen to confidentiality where a crime is involved. It was rich language, but it struck true and that is what the Government are trying to strike against.
§ Mr. Maclennan
I am grateful to the hon. Gentleman for refreshing my memory.
As I have said, the criminal law of this land should seek to reflect the moral perceptions of society and this clause plainly does not do so. It does not reflect the moral perceptions of this House and it will be a constitutional outrage if the Government press ahead without accepting the amendments which have been so cogently deployed by members of their own party.
The other amendments are meritorious and I suspect that there is much agreement in the House, especially among those who are present, regardless of party, that this occasion is very much an illustration of the way in which the House of Commons can operate effectively—that is, if the Government do not simply roll in their absent Members.
The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) is assuredly right in seeking to amend, in amendment No. 71, the provision that the clause should apply not only to those who are in the service, but also to those who have been in the service. The hon. Member for Torbay (Mr. Allason) is also right to seek to provide a means of scrutinising effectively and fairly the publication of memoirs by those who wish to give information and advice in the public interest about their experiences in the Security Service.
Those amendments are needed and if they are accepted they will not invalidate the purpose of the Bill. They will strengthen the Bill and make it a more generally acceptable means of modifying the more unenforceable sections of the Official Secrets Act 1911.
§ Sir Richard Body (Holland with Boston)
I am sure that my hon. Friend the Minister of State is poised and ready with a powerful speech, but before he replies I should like to take a minute in which to ask him a question because I do not want to become a criminal—still less to be guilty of a crime relating to the safety and security of our country.
In the 1970s I was an officer in an organisation that was campaigning against our membership of the European Community. I had a telephone call and subsequently a meeting with someone who was in the security services. He said that he did not doubt my good intentions but he warned me that my telephone was being intercepted. The reason for that was the fact that I was serving on a committee and seeing a great deal of someone whom the older Members of the House will remember, Anne Kerr, then the hon. Member for Rochester, who was then married to Russell Kerr, then the hon. Member for Feltham. I was warned to be careful of what I said on the telephone whenever I spoke to anyone.
I suppose that my informant, who was a good friend —obviously I must not reveal his identity now—was guilty of a crime. Having heard what the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) said, I am beginning to wonder whether, if the Bill were on the statute book now, I would be guilty of a crime in telling the Committee that 15 or 16 years ago I received that information.
My hon. Friend the Member for Thanet, South (Mr. Aitken) spoke of all sorts of dire things happening and said that policemen would frequently be in and out of the House with handcuffs. Surely that is going a bit too far. Does my hon. Friend agree?
§ Sir Richard Body
Perhaps my hon. Friend will assure me that I am not a criminal and that he will not make me a criminal—I hope so.
§ Mr. Norman Buchan (Paisley, South)
I feel that I should cap that story. I have already spoken about my experiences in relation to MI5 and the security services. However, on one occasion I received two letters on the same day. They had been put into the wrong envelopes. One came from the south of England and one from Glasgow. Each had arrived in the wrong envelope because they had been opened and incorrectly replaced.
At least one Opposition Member has welcomed the hon. Member for Epping Forest (Mr. Norris) to this debate. I should like to do so, too. He has made a trenchant arrival, but I must warn him that things have got a lot worse since he was a Member. One reason why the Chamber is bare for such a debate is that his hon. Friends are terrified that, once more, they will be convinced that the Government are wrong. It is simpler to come in just to vote for the Government than to listen to the arguments. The hon. Gentleman will find that out for himself in due course.
The Bill was heralded as a reform of the portmanteau provisions of section 2 of the discredited Official Secrets Act 1911. The reform was initiated when we were full of discussions about the nonsense—for this country, the humiliating nonsense—of the "Spycatcher" affair and its revelations. It was supposed to have, and was thought to have, picked up some of the conclusions that their 1083 Lordships had reached during the past few years, including the last one that was in favour of a public interest defence. That has been totally ignored. In the same way, the Government ignored the other matter that was expected to be included—that there should be some democratic supervision over MI5.
The problem with clause 1 is that it ignores both those matters. By placing MI5 under completely secret supervision instead of some form of democratic scrutiny, the Government have made the provisions of this Bill an even more serious issue. If MI5 was open to some supervision, with reports, however minute, made to this House, the absoluteness of the Bill would not be so serious. The matter cannot therefore be considered in isolation. The Security Service Bill and this Bill must be taken together.
The Home Secretary disappeared from the Committee on the Security Service Bill and has not been present in this one. Perhaps he was afraid that he too might be convinced by our arguments and find himself in the wrong Lobby. It is disgraceful that the Home Secretary is missing from the debate on this issue, which is at the heart of the freedoms and liberties of this country. This issue is associated with other matters, including, for example, Government interference in the programme "Death on the Rock" in broadcasting and the monopoly of the press. We are being surrounded by an apparatus of secrecy which is the more difficult to penetrate. The Government have now produced a definition to make that form of secrecy absolute.
It is no use the Government saying that such secrecy is limited to those in the security and intelligence services. It goes further than that. In the past, people in my case have been opening my mail and replacing letters in the wrong envelopes. There have been other much worse cases, including those of Ponting and Tisdall.
In the case of Ponting, the sensible jury rejected the nonsense of guilt. That was an interesting case, and I do not know why the Government are afraid to appoint half a dozen honest men and true from among right hon. and hon. Members. They saw how intelligently the jury cut through the nonsense of the judge's direction and said, "This is nonsense. Yes, you have proved that legally this man may be guilty but he cannot be guilty of disclosing an iniquity." A similar view was taken by the judge in the Gartside case in the last century.
Previous laws have failed, and it is nonsense to call this Bill a reform. The Government were compelled to introduce a change because they failed to achieve a conviction and Ponting was found innocent. They had to find other methods. They used confidentiality until this Bill was produced. That was meant to be used in commercial issues. They misused that provision in the case of the Swiss chemical firm of La Roche. When they realised that they were coming unstuck, they used injunctions to prevent any examination or publication.
The Government have now introduced this so-called reform of the secrecy Act. First, we are told that the guilty person is onewho is or has beena member of the security and intelligence services. The retrospective nature of the legislation has been raised. If such conditions did not exist when a person took office, it would be disgraceful for them to be imposed later. I cannot 1084 understand why the Government are not taking that point on board. The Home Secretary should be here to listen to the arguments.
The "Spycatcher" judgment was based on two factors. The first was that the information was already publicly known. Under the Bill, however widely publicised it was, anyone revealing it would be found guilty. If Peter Wright were here, he would be found guilty even though the judges have already decided that "Spycatcher" is publishable. It is dangerous nonsense.
I said on Tuesday that we have seen the subversion of parliamentary democracy. The sovereignty of Parliament is being replaced by the sovereignty of the Executive. The Bill says that an offence is committed if security information is disclosed "without lawful authority". What are we coming to? Until now, offences have been committed only when there has been proof of wrongdoing. The Executive are put in conflict with the people because the people are entitled to know if iniquity is taking place. I should have broadcast more powerfully the incidence involving the two envelopes and the phone tapping.
The Executive are also put in conflict with Parliament. We have seen difficulties in attempting to get at the truth in matters other than those involving security. For example, there were problems over the Westland case and the Belgrano. The Select Committees, established to obtain the truth for Parliament and, therefore, for the people of this country, are confronted by an Executive who tell their civil servants and former Ministers, such as Leon Brittan, "Thou shalt not tell the truth." My right hon. Friend the Member for Dudley, East (Dr. Gilbert) put a series of questions to Leon Brittan in the Select Committee in order to show what he was not prepared to answer. For about five columns of the report of the proceedings, Leon Brittan—we can now mention him by name as he has taken whatever manor he is supposed to have for his new job—refused to answer. Also, civil servants were instructed not to answer. We have permanent secrecy and people are bound by that secrecy indefinitely. We have no instruments in Parliament with which to rectify that.
I do not approve of a Bill of Rights or Charter 88 and so on, but we must legislate to introduce certain rights. One of those rights must be the right of a Select Committee to put civil servants and others under oath if the House gives the Select Committee that right. There is no other way of obtaining the truth, given an Executive of this sort.
§ Dr. John Gilbert (Dudley, East)
Select Committees have the right to put people under oath. The Select Committee on Trade and Industry, of which I am a member, did that recently in the petrol retailing inquiry. There are plenty of precedents for that. The difference is that, when a witness is put on oath before a Select Committee, all the penalties that attach to perjury apply to any false evidence.
§ Mr. Buchan
That is valuable and helpful, but clearly that right must be strengthened.
I apologise to my hon. Friend the Member for Linlithgow (Mr. Dalyell). I missed his point as I was involved in a hurried discussion with my right hon. Friend the Member for Dudley, East (Dr. Gilbert).
§ Mr. Buchan
That is a powerful absolute silence. We must have the right to put people under oath, and we must understand it and be prepared to use it. If we are to fight back against the sovereignty of the Executive, both sides of the House must combine to fight for freedom.
§ Mr. Maclennan
I was slightly disappointed to hear the hon. Gentleman say that he is opposed to Bills of Rights. He will recognise that article 10 of the European convention on human rights guarantees the freedom of communication which clause 1 is seeking to deny. Article 10 would undoubtedly be the subject of an appeal if the matter came to our domestic courts. I hope that the hon. Gentleman will agree that there is much to be said for not having to go to Strasbourg but being able to invoke that right here.
§ Mr. Buchan
I am not taking an anti-EEC attitude on this. If we cannot achieve freedoms in the House, and if article 10 could achieve that I would be prepared to use it. However, we want that power in our domestic legislation.
I am concerned about the constitution, and unhappy about a written constitution being handed over to the judiciary alone. That is not the right way forward. Many legislative measures must be introduced to guarantee rights, but I am not advocating an entire constitution or Bill of Rights to govern our business. But what we have relied on in the past to protect our democracy and rights —the sovereignty of Parliament—has fast disappeared. We all know it no longer exists. We now have the sovereignty of the Executive. That has been due not only to the behaviour of the Executive but to the cowardice of Parliament. We need some courage, and let us hope that we see some on this occasion. We cannot allow the Bill to go through in this form.
I have nothing against the Minister of State, but it is a disgrace that he is replying to this debate instead of the Home Secretary, whom we entrust with these matters. The right hon. Gentleman should have been here to listen to the debate. We do not accept that the Minister has surrendered to the arguments of last Monday and Tuesday by bringing us a little tiddler of an amendment. There will be a Report stage, and I hope that the Minister's hon. Friends who are on the side of goodness and justice will take advantage of that, as I intend to do.
§ Mr. Anthony Coombs (Wyre Forest)
Given that my voice is just about to become an official secret I shall be extremely brief.
An objective observer would find curious the apparent enthusiasm for a public interest defence for members of the Security Service. It has taken eight years, and innumerable White Papers and abortive private Members' Bills to arrive at this significant improvement to the Official Secrets Act 1911. It is equally curious to hear the right hon. Member for Plymouth, Devonport (Dr. Owen) and other Opposition Members arguing so strongly for these reforms since, when in office, they did nothing to promulgate them.
The furthest that the Opposition got was the 1978 White Paper. It effectively gave absolute protection against disclosures by the intelligence services. It proposed 1086 a system of ministerial certificates which would be issued by the Ministers concerned and the Attorney-General and would determine that there was a potential forserious injury to the interests of the nation".If the Ministers involved decided that, the prohibition on members of the intelligence services saying anything, before, at the time, or afterwards, would have been every bit as comprehensive as that in clause 1—
§ Mr. Richard Shepherd
My hon. Friend has misunderstood that White Paper, which also derived from Franks. There was an injury test; that was absolutely understood by Franks, and the former Home Secretary, the right hon. Member for Morley and Leeds, South (Mr. Rees) will confirm that.
The difficulty that this and previous Governments have faced is that of how to produce the evidence in court. Franks suggested doing that by ministerial certificates, but there was no question but that a test had to be met. The problem with clause 1 is that no tests must be met. I hope my hon. Friend appreciates the difference.
§ Mr. Coombs
I do. However, the effect of those ministerial certificates, if they claimed serious injury to the interests of the nation, would be conclusively to prohibit revelations by members of the security services. What is more, the Labour Government made no legislative proposals as a result of the White Paper—they just sat on it—and they did not even give unequivocal support to Clement Freud's Official Information Bill, which made the same sort of proposals as the Labour party now so warmly supports.
It is not unreasonable to recognise that there are some areas of policy, Government activity and secret service activity which are so crucial to the interests of the nation that they should never be released. That is accepted as a contractual obligation by people entering the service. These matters cannot be released in the courts. That was implicitly recognised in the failure of the Labour Government to reform the Official Secrets Act 1911. At least this Government have brought in additional significant safeguards to allow people who are disaffected and aggrieved in the security services to complain. Under the Labour Government there was no staff counsellor to deal with these complaints. There is now also a direct appeal to the Home Secretary, then to the Attorney-General and then to the Prime Minister. There are at least six people who may take a different or the same view as that of the aggrieved member of the service. That would provide a strong defence against any sort of conspiracy, and would throw an effective cloak of secrecy around the Security Service.
§ Mr. Corbett
The hon. Gentleman's speech should be marked at this moment. The debate has been in progress for three hours; he will not know, because he has not been able to be with us, that his is the first speech in favour of the Bill all afternoon.
Secondly, I offer the hon. Gentleman a piece of advice: he should keep out of the Members' Lobby, because he will be lassooed to make speeches without having heard those that have gone before.
§ Mr. Coombs
That remark was unworthy of the hon. Gentleman. Having spent an admirable weekend with him in Nicosia I may say that it was uncharacteristic of him —[Laughter.] I should have said "with the hon. Gentleman and others". He should realise that I spent five 1087 hours sitting in the debate on the Security Service Bill without speaking, and another five likewise during an Official Secrets Bill debate, and my interest in these matters is well known. Sadly I was not called in those debates.
Edmund Burke said in the 18th century:It is a general popular error to imagine the loudest complainers for the public to be the most anxious for its welfare.This debate has been significant evidence of that. If we do not operate a regime like that offered by clause 1, we shall allow a selective, pick-and-choose regime of secrecy in the security services, which will undermine their effectiveness. That will be bad for the services℄
§ Mr. Norris
I understand my hon. Friend's strictures, but he should not imagine that we who have pointed out the value of the amendments to the clause do not believe that there should be a strong and effective mechanism to ensure that that which should be held secure is so held. What is more, we believe that those who breach such proper regulations should be properly dealt with and punished. I and my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) have argued that the clause as drafted imposes such an obligation in terms of time and in terms of the omnivorous nature of the subject matter, that it is rendered effectively unworkable. Surely that is what my hon. Friend should deal with.
§ Mr. Coombs
Any other clause would shoot the security services and their hold on secrets full of holes. It would amount to telling aggrieved members of the Security Service that, provided they went through the procedure and happened to disagree with the staff counsellor, the Security Service commissioner and the Prime Minister—and the Home Secretary—however sensitive and damaging their information might be, they could go ahead and disclose it to their hearts' content. That is a "pick-and-choose" way of operating a security service. It would be immensely damaging not only to the effectiveness of the Security Service but to its unity and morale which are so important to its efficient work.
§ Mr. John McWilliam (Blaydon)
Clause 1 does not refer just to the security services. Clause 1 (b) refers to other people who may come to have information which is by its nature a matter of national security but who have not, because of their occupation, taken the kind of Trappist vows that the hon. Gentleman seems to imply should be taken by members of the security services.
§ Mr. Dalyell
Right hon. and hon. Members and personal friends of the late Russ Kerr would be more than curious at the Minister's reply to his hon. Friend the Member for Holland with Boston (Sir R. Body). It is the clear memory of some Opposition Members that at least Russ Kerr believed that he had been mistreated by the security services. My right hon. Friend the Member for Blaenau Gwent (Mr. Foot) nods in agreement. What the hon. Member for Holland with Boston has said must surely be answered. It is a most serious matter. Our departed, deceased colleagues have rights. Some of us want to pursue this matter and to learn what the Government think about it. I speak as one who happens to have a different view of the European Community from that of Russ Kerr.
1088 I wish to put six reasonably succinct questions on the amendment. There is a great deal that we need to learn. One of them is a repeat of a question that I asked on 21 December 1988 on Second Reading.
§ Mr. Heffer
Before my hon. Friend goes on, I wish to raise a very important matter in relation to Russ Kerr. I want to make it quite clear that Russ Kerr was a bomber pilot in the Royal Australian Air Force and spent four years in that service. I want to know the answer precisely because of that and because he was my friend.
§ Mr. Dalyell
I endorse that with some feeling. Russ Kerr's war record is second to no one's in the House.
On Second Reading I said:I asked a former Prime Minister"—the right hon. Member for Old Bexley and Sidcup (Mr. Heath)—a question about someone acting like Desmond Morton acted for Churchill. The former Prime Minister said that the Home Secretary would have to answer. The Home Secretary shook his head, and I believed that he thought that anyone in Desmond Morton's position would not be prosecuted.I then asked:May we have some reflections on that? I believe that some people think that someone like Desmond Morton would find himself in prison."—[Official Report, 21 December 1988; Vol.144, c. 528–29.]I admit straight away that retrospective cases are always difficult—I can see the Minister's difficulty—but could we have some reflections on that?
My second question goes back to the remarkable exchange between the Minister and my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) earlier today. Have some of us understood it properly? The Minister seemed to say that if something illegal happens there can be no revelations about the illegality. If I have misunderstood, I ought to be told. If that was not the purport of his response to my right hon. Friend, what exactly did his intervention mean? I hope that he will explain.
§ Mr. Hattersley
I was contemplating whether to clear the question up now or when the Minister of State answers, particularly if he continues to shake his head as though my allegation were untrue. If I may refer my hon. Friend to the Official Report, I said:The Home Secretary says that I have got it wrong. I will read the passage from Hansard if he wishes … According to my reading of the Bill, if I am told by a member of the security services that my telephone is being tapped it is an offence for me to reveal it. Is that so, or is it not so?The Home Secretary said:That is correct".—[Official Report, 16 January 1989; Vol. 145, c. 42.]None of the qualifications that the Minister of State may attempt to insert will alter that.
§ Mr. Dalyell
I do not wish to take up the time of the Committee. The point has been made and we await the answer.
My third question can be illustrated personally and I hope that the Committee will bear with me. In 1982–83 I was tipped off by someone who was informed, someone in a position to know—I do not know whether he was a member of the security services or not—that the couple of rooms where I stay when I am in London had been visited. I am quite sure that the visitors were not interested in me as such, as a Member of Parliament, but I have reason to 1089 suppose that they were deeply interested in the source of my information about a ship. I make no bones about it—the information had come through the diaries of Lieutenant Sethia, the supplies officer on HMS Conqueror. At that time there was great curiosity, as my hon. Friend the Member for Newham, South (Mr. Spearing)—a member of the Select Committee on Foreign Affairs which looked into these events on 1 and 2 May—will know. There was nothing of value to take—it was very sparse—but having been tipped off, I left my squash racket, my gym shoes and my clothes in particular positions. On three occasions when I came back after the weekend they were not in the same position as I had left them. One can draw one's own conclusions from that.
Under this legislation, surely I would then have been obliged to keep completely quiet about it. I repeat in another form the question that my right hon. Friend the Member for Sparkbrook asked in an intervention. I see the hon. Member for Epping Forest (Mr. Norris) nodding. It is a valid question. What would the position be if I told the police about this? At least that must be answered, because when my right hon. Friend the Member for Sparkbrook asked the question the Minister was shaking his head in disagreement. I am afraid that he will have to spell out precisely the basis of that because there is a difficulty. If we make public unsubstantiated suspicions we are in the clear, but if we make public firm information we are gagged. That is a logical absurdity. If one is not sure about something, one is in the clear, but if one is sure, one is in deep trouble.
§ Mr. Dalyell
If one knows it is the truth, one is in the clear if one says, "But I am uncertain," which is untrue and is therefore a lie. In other words, pleading uncertainty and not knowing puts one at an advantage.
Fourthly, I unashamedly read a paragraph from Maurice Frankel's excellent brief, which he has given to a number of hon. Members. He says:A civil servant or journalist may reveal information about behaviour so unacceptable that no minister will dare stand up and defend it. Everyone in a position to intervene may have failed to act. Yet the person who finally exposes the matter risks imprisonment under this Bill—while denied the chance to justify the disclosure.Are Mr. Frankel and others right? The answer is highly germane to our discussion. They must be either right or wrong.
In asking my fifth question I must refer to the speech of the hon. Member for Caithness and Sutherland (Mr. Maclennan) because I return to the important classic case of Gartside v. Outram in the 19th century. In that case the courts upheld the right of an employee to reveal that his employer was defrauding his customers and to reveal it to those customers. The judgment referred to having no confidence in iniquity. One might say that we in Parliament are here concerned with confidentiality and with no confidentiality in wrongdoing. This raises a fundamental issue. Is wrongdoing to be protected by what amounts to a law of confidentiality?
My sixth question is about one heck of a letter in The Times today. It was headed, "Civil servants and official secrets" and signed by Douglas Allen, Frank Cooper, 1090 Patrick Nairne—who, as my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees) will know, was a member of the Franks committee on the Falklands and, like the others, he is a Cabinet Office civil servant—and Douglas Wass, the permanent secretary to the Treasury. When people of that calibre write such a letter to The Times, it must warrant an answer from the Government.
The four signatories make two important points. First, they write:But it does not seem to be wholly unimaginable that a government might perpetrate some serious impropriety in circumstances in which the Head of the Civil Service might be unable to respond effectively to representations about it from within the service.My right hon. Friend the Member for Dudley, East (Dr. Gilbert) nods in agreement. If that letter had come from an hon. Member or from a commentator in the press, it might have been serious enough, but when it comes from four of the heaviestweight permanent secretaries that there have been in this country since the war their words need answering.
The second point that they make also needs answering:Such a right of reference to an independent authority of an active impropriety by ministers would not be new. It already exists in the financial field where the permanent secretary, as accounting officer, is obliged to draw the attention of the Comptroller and Auditor General to expenditure on which his or her minister has insisted, but which the permanent secretary considered to be improper or illegal.What remedy do Ministers suggest for dealing with problems which these experienced heavyweight permanent secretaries say could not be dealt with by going to the head of the Civil Service? How can such abuse be prevented if the head of the Civil Service is unable to prevent it and disclosure is an offence?
Perhaps the Minister will answer those six questions.
§ Mr. Nigel Spearing (Newham, South)
My hon. Friend the Member for Linlithgow (Mr. Dalyell) has posed important questions. It has been a privilege to listen to my colleagues expressing their views in this debate, which is about to reach its climax. It has been one of the best debates in full parliamentary tradition that I have heard for some time.
It may be asked why more hon. Members are not present. I suggest that security, the subject of this debate, is now perhaps not so much the security of the realm that it was in 1914 or in 1938 or when the official secrets legislation had its origin. We in this Chamber are particularly concerned with the security of parliamentary democracy, and this debate has been a contribution to that.
It was said that there would be opportunity to discuss this as a Committee of the whole House. I have noticed with interest the absence from the Committee of responsible Cabinet Ministers. Is it not customary, when a Bill is in Committee, for a senior Member of the Government to be present for at least some of the time and to give frequent replies to questions?
I do not accuse the Minister of State who is in attendance tonight of discourtesy. But does not the absence from the Committee of senior Ministers—indeed, of Members of the Privy Council and of the Government—deny them the moral authority to introduce legislation of this kind, when they are not present to hear the 1091 arguments and to reply to them? That must be some condemnation of the lack of regard for parliamentary democracy which some of us feel is now under pressure.
That pressure comes not only from Opposition and some Conservative Members. When I show parties round the House, especially parties of young people, I start at the Norman Tower. I point across to the Treasury and say, "There is the Government in Whitehall, the Queen's Government. This is Parliament. The Government can do certain things on their own, but they must come to Parliament for permission to do other things" and I spell them out.
I also explain that because they are the Queen's Government, there is line management, there is hierarchy; it is like a company or an army with ranks and discipline. Here in Parliament I, like the Prime Minister, have one vote. It is a different basis of relationship.
I see seated on the Opposition Benches right hon. Friends who were Members of the last Labour Government when I opposed some of the actions they were taking. In any Government, including a future Labour Government, there will be personalities, private office wars and differences of opinion. Are they to be covered by the sort of blanket provision that is before us today? And should they take actions which, if they became public, would perhaps not be to their credit—I am not referring to anybody from any party but to human nature—the chances of some form of sanction or publicity would not exist if the clause went through unamended. That might encourage a future Government to act in a way wholly contrary to the traditions of parliamentary democracy and accountability.
I say to the Minister and those hon. Members who are here that, if this thesis is correct, the clause, far from providing some sort of sanction or reminder of those things that happen in all Governments, and may happen in the future—but which we want to reduce, if not to eliminate—might itself be accused of being anti-parliamentary and against the interests of parliamentary democracy and accountable government, as we have developed it on this very spot over the centuries.
§ 8 pm
§ Mr. Kenneth Hind (Lancashire, West)
I support this clause, but I have one or two points to put to the Minister, which I am sure he will attempt to answer. Every civil servant or member of the security services who deals with security or defence matters knows—they have known always—that they have a lifelong duty of confidentiality. That is essential if we are to preserve the security of this country. Many of them in the past have made the request through the normal channels in the Ministry of Defence to publish books on their work, and some of them have been published, subject to deletions. That is a principle which is enshrined in the Bill, and it is essential.
My concern is that there is for the member of the secret service a clear line of process to follow if he has any reservations about what is happening. He may go to the staff counsellor who has access to the Home Secretary, who in turn has access to the Prime Minister. There is, therefore, a clear line for the member to follow if there are wrongful activities which are clearly undermining the status and the security of this country.
1092 At the root of what the hon. Member for Linlithgow (Mr. Dalyell) has said, and what enshrines the point in the letter to The Times, is that, if we have a Home Secretary who wishes to conceal something that is not in the interests of the public, what does that member of the secret service do? That is something we must consider during this debate.
If a member of the secret service comes to my surgery or to the surgery of any hon. Member, by listening to what that member of the secret service says to us, we do not commit an offence. Receipt of a disclosure is not an offence, and there is an obvious line to pursue in our case. We obviously have the House, which is covered by privilege, but the correct course of action for every Member of Parliament would be to raise that matter directly with the Minister responsible for the secret service, either the Home Secretary or the Prime Minister. That course of action can be pursued without the Member of Parliament concerned committing any offence and, of course, the matter can be pursued and investigated. We must make it clear that any hon. Member who receives a disclosure from a member of the secret service does not commit an offence. It is wrong to say otherwise.
§ Mr. Norris
Will my hon. Friend accept, however, that the person who communicates the information to him, as the Bill is drafted, automatically commits an offence?
§ Mr. Hind
My hon. Friend makes a good point, which I fully accept. That person, however, has a direct line of normal procedure to follow—to the staff counsellor, who will then go to the Minister responsible for the secret service—and his point will be dealt with.
My point is, what safeguards does this House and members of the secret service have should it be that the Minister concerned has no interest and wishes to conceal something which is obviously detrimental and should not be considered?
When we dealt with the Security Service, built into the Security Service Bill was the provision for a commissioner who would look over the Home Secretary's shoulder to protect the public interest when the Home Secretary issues warrants to pursue matters where extraordinary action, which would normally breach the civil liberties of an individual, is required. That commissioner reports back to the House and he has a clear responsibility to represent the public interest. In those circumstances there is a problem, with which I hope my hon. Friend will deal.
§ Sir Nicholas Bonsor (Upminster)
Following on directly from my hon. Friend the Member for Lancashire, West (Mr. Hind), I do not accept that what he has said has much merit on the question whether people working in the Security Service can go to their Member of Parliament when they have problems. I want to bring to the Minister's attention a case which I had in my surgery two months ago. Someone in precisely that position came to me because he was profoundly unhappy about the way in which he was being treated within his department. He had followed the procedures laid down. He had seen his departmental head, but he remained extremely unhappy about the way in which he was treated. I was able to take his case up with the appropriate Minister and, while I cannot say that my constituent is necessarily fully satisfied, at least he has had the advantage of seeing that his case has been properly considered by the Minister and by the officials at the highest level.
1093 I believe that it would be appalling if this Government were to legislate—and I believe legislate by mistake, because I am certain it is not their intention—in such a way as to prevent a constituent going to his Member of Parliament with a problem relating to his personal circumstances at work, because he would be committing a criminal offence if he were to do so. I do not believe that that is my hon. Friend's intention. I hope that by showing sympathy to the amendment to this clause and by being prepared to look closely at it before Report, the Government will put that right. If the Government do not, I am sure many of us will look at that point and be unable to support them.
§ Dr. Alan Glyn (Windsor and Maidenhead)
I support this Bill, because it enshrines in legislature some form of basis for the security services. [HON. MEMBERS: "That was last week's Bill."] I believe that the most important point is that there is a lifelong confidentiality for people who work within that service, which is essential.
§ Mr. John Patten
We have had a most interesting debate. I begin by welcoming back to the House my hon. Friend the Member for Epping Forest (Mr. Norris) in his new seat. His return has been greeted by plaudits from both sides of the Committee. He is sadly missed in Oxford not only by me, but very much by the ladies and gentlemen of the press corps of Oxford, because he and I used to give a good joint party. Unfortunately, the new occupant of the seat, the hon. Member for Oxford, East (Mr. Smith)—perhaps under the strictures of his general management committee—does not join in this entertainment.
My right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour) and the hon. Member for Caithness and Sutherland (Mr. Maclennan) pointed out that this debate was being held on the Floor of the House because it concerns an important and constitutional issue, which is indeed the case. I am glad that that fact has been recognised, because it has given right hon. and hon. Members the opportunity to debate these issues fully.
I turn my mind first to a considerable issue of principle, and then there is a host of questions which I must attempt to answer, such as that put by my hon. Friend the Member for Holland with Boston (Sir R. Body), by the right hon. Members for Birmingham, Sparkbrook (Mr. Hattersley) and for Blaenau Gwent (Mr. Foot), the six questions put by the hon. Member for Linlithgow (Mr. Dalyell) and those asked by my hon. Friend the Member for Upminster (Sir N. Bonsor). It has been a long debate and I shall be as brief as I can, but I shall certainly answer those questions.
§ Mr. Maclennan
Before the Minister reaches matters of substance, would he be kind enough to explain why the Home Secretary has been, and is, absent from the debate?
§ Mr. Patten
The Home Secretary has been a most assiduous attender at debates on these issues and he will be here shortly to take part, in particular in the important debate on the third group of amendments on public interest defence. It is uncharacteristic of the hon. Gentleman to criticise my right hon. Friend in that way. Anyone who sat through the long hours of the debates on the Security Service Bill would have noticed my right hon. Friend's attendance in the Chamber, and I hope that he will not be gratuitously criticised.
It is the Government's firm view that secrecy must be at the heart of the work of the security and intelligence 1094 services. [HON. MEMBERS: "Hear, hear."] That argument is shared by all of us. The decision is where to draw the line and which areas should or should not be secret. Clearly, there is a substantial division between me and several hon. Friends, including my hon. Friends the Members for Lancashire, West (Mr. Hind), for Wyre Forest (Mr. Coombs) and for Windsor and Maidenhead (Dr. Glyn), all of whom support an absolute lifelong duty of confidentiality, and those who do not. That is not to say that we do not all support the need for official secrets to be kept. There is a difference of view on where the line should be drawn, and it would be wrong of me to attempt to obfuscate that.
§ Mr. Richard Shepherd
I have listened for several days to my hon. Friend the Minister. He says that the difference is about where the line is drawn. Is that not what he just said? The point that we are concerned about—I want him to address it somewhere in his effluvium—is that the Minister is not drawing lines. That is an absolute contention. It is not a question of drawing lines; it is absolute assertion. We are trying to draw lines in our amendments. Let the Minister be disabused of the idea that he is trying to draw a line. Our criticism is that he should be drawing a line, but he is contending for everything.
§ Mr. Patten
We are drawing different lines because we believe that in one part of clause 1 those in the services should have an absolute lifelong duty of confidentiality. In another part of clause 1 those who are Crown servants and in the Civil Service have other tests of damage applied to them. This is not such a pure and simple matter as my hon. Friend suggests.
The services can operate effectively only if members of those services honour their obligation of absolute secrecy. Any disclosure by them without authority breaches that trust, and so must damage the work of the services. That is what we believe, and it is a matter of belief and view on which we differ.
Amendments Nos. 14 and 16 in the names of my hon. Friends the Members for Aldridge-Brownhills (Mr. Shepherd) and for Thanet, South (Mr. Aitken) and the right hon. Member for Morley and Leeds, South (Mr. Rees) set aside those propositions. They believe—this is where the line is drawn—that secrecy is not always necessary in all circumstances. They think that a member of the services should be able to disclose information without attracting the sanction of the criminal law if he or she can show that the information did not damage the work of the services. We believe that this is one comparatively narrow but vital area where we cannot afford to drop our guard by removing the sanction of the criminal law. It is not new, but already exists and the Bill narrows it.
§ Mr. Heffer
That is precisely the argument that was used by Mr. Stalin and those in the dictatorships of eastern Europe and other parts of the world. Is not the Minister aware that a gentleman called Krivitsky in Stalin's service wrote a book—he had left Russia—and was run down by the GPU and shot in his hotel in Switzerland? The Minister must think about what he is saying. He is putting forward a dangerous argument.
§ Mr. Patten
I am not aware of the book to which the hon. Gentleman referred, nor of the name of its author, and it is no good pretending that I am.
§ Mr. Patten
The hon. Gentleman asks about the principle. It is far-fetched to suggest that there is any similarity between the actions of Mr. Stalin and the actions of this Government.
The secrecy which must imbue the services is not merely incidental. It has not grown out of some bureaucratic stuffiness. It is essential for the work of the services. The security of the country and the people rests on members of the security and intelligence services carrying out their work in secret. That is fundamental. That point was well made by my hon. and learned Friend the Member for Burton (Mr. Lawrence) in a debate earlier this week.
Having set out my views on the principles involved, I shall get down to answering the practical questions.
§ Mr. Hattersley
The Minister may have forgotten that not long ago I said that the problem with the Government's argument is that they assert the necessity for absolute, everlasting secrecy, but never justify it. Would the Minister, who has repeated about five times that it is his belief that secrecy must be absolute and everlasting, justify why that must be so for matters of triviality?
§ Mr. Patten
The justification is the operational needs of the service. I am glad that the right hon. Gentleman has given me the chance to extend my argument. I was not going to, but he wants me to. If a member of the services breaks the obligation of lifetime secrecy, that person certainly gives information which is almost certainly harmful—[Interruption.] Let me explain. If the right hon. Gentleman will listen, I shall answer his question. That agent betrays the special trust which has been placed in him or her and undermines confidence in the ability of the services to carry out their vital work.
§ Mr. Patten
Let me finish the argument and then I shall give way again to the right hon. Gentleman. I listened carefully to what he had to say.
It is not just the confidence of the public which is damaged but, equally important, the confidence of those who provide or may provide information to the services, and the confidence of others who necessarily co-operate with them. When a member of the service breaks the necessary silence in which we believe and assert the services must work, he also undermines the confidence of his colleagues in each other. That point has been missed entirely during the debate and it is worth our attention.
§ Mr. Hattersley
Will the Minister address the matter seriously? If he accepts the amendment, there is a mechanism by which trivial information may be legitimately passed out. The idea that a Security Service officer has broken any rules is automatically vitiated by the fact that the rule is there so that trivial information is available. The idea that it is a breach of confidence is destroyed if there is a mechanism by which non-damaging information can legitimately be disseminated.
1096 I shall give the Minister an example of what I mean and he can explain why the information should be kept secret. Sir Mansfield Cummings, who was head of MI6 during its inception and remained head from 1919 to 1923, kept a log book since it was his habit, having been a sailor. Recently his family asked, for sentimental reasons, to see it. They were told that they could not see any of it or obtain the information they sought—the name of the theatrical costumier from whom Sir Mansfield Cummings bought his disguises. [Laughter.] How would it be detrimental to the state if that information were given a wider audience? [Laughter.]
§ Mr. Patten
The right hon. Gentleman succeeds in engaging the attention of the Committee and in getting a good laugh from his right hon. and hon. Friends. I will not comment on operational decisions taken by the service in the past. That is a tradition followed by Governments of all political colours in respect of major and minor operational decisions. I hope that it will continue.—[Interruption.]
§ The Temporary Chairman (Mr. Patrick Cormack)
Order. The Minister must be allowed to develop his argument.
§ Mr. Patten
I have news for you, Mr. Cormack—I have deployed my argument.
I turn to specific questions. That put by my hon. Friend the Member for Holland with Boston particularly exercised the attention of the hon. Member for Linlithgow. I also knew the late Russ Kerr—although, I suspect, much less well than Opposition Members. I remember him seated below the Gangway, and seeing him in other parts of the House. He was a much respected Member. As with my answer to the last question, when a hilarious and funny example was given by the right hon. Member for Sparkbrook, my response to any question regarding operational decisons relating to someone in the past must be the same as that always given by Ministers, of whatever party, who have ever stood at the Dispatch Box. We do not comment on operational issues affecting individuals. That is a fundamental principle. I hope that if the right hon. Gentleman is a member of a future Labour Government, he will not stand at the Dispatch Box and make flip judgments about operational matters concerning the security services.
§ Mr. Patten
My hon. Friend says that is exactly what the right hon. Gentleman would do.
My hon. Friend the Member for Holland with Boston gave a specific example and asked whether he would be committing an offence. I assure him that, although his example came from before the introduction of the Interception of Communications Act 1985, as I explained earlier, he could now go to the tribunal and have the matter properly investigated without placing any secrets in jeopardy. Alternatively, he could go to the police, who are themselves Crown servants. In that way, he would commit no offence.
§ Sir Richard Body
If my informant wrote his memoirs 20 years after the events, would he be committing an offence under the Bill?
§ Mr. Patten
No; its provisions are not retrospective. However, will my hon. Friend elaborate? I want to answer his question properly.
§ Sir Richard Body
If, 20 years after the event, and having retired from the security services, my informant wrote his memoirs and alluded to the incident I mentioned earlier, would he be committing an offence under the Bill?
§ Mr. Patten
I wanted to establish, by asking my hon. Friend to elaborate, whether the informant to whom he refers was a member of the security services. Having established that, the answer to his question is yes. He would commit an offence, because he has a lifelong duty of confidentiality owed to the state.
Another question raised by the right hon. Member for Sparkbrook interested the right hon. Member for Blaenau Gwent and the hon. Member for Linlithgow. The right hon. Gentleman asked what will happen if he is informed that his telephone is tapped. It is a variant of a number of possibilities he has suggested over the past weeks.
§ Mr. Patten
I shall answer the right hon. Gentleman's question first. The hon. Member for Workington (Mr. Campbell-Savours) must contain himself.
The right hon. Member for Sparkbrook cited the example of a member of the security and intelligence services informing the right hon. Gentleman that his phone is tapped, or that his property has been entered, without a warrant. The right hon. Gentleman asked what he could do in that situation. I shall take it in three stages, and then give way if the right hon. Gentleman wants me to elucidate.
Any person finding himself in such a situation could refer to the tribunal and complain. That is one avenue of redress. The Bill does not require such a person to leave the matter there. If he has evidence of the commissioning of a criminal offence, he could quite properly go to the police. I shall refer the right hon. Gentleman to the relevant clauses and subsections.
The police are Crown servants and their function is to investigate crime. Nothing in the Bill prevents the police from investigating crime. Clause 7(3) is explicit on that point. So another sensible course of action for the right hon. Gentleman would be to report his feelings to the police. However, if, in this hypothetical example, the right hon. Gentleman acted differently and did not go to the tribunal or to the police but made his views known in a different way, he might commit an offence.
However, I shall place that in context. It certainly would not be an absolute offence. It is an offence that would need to be considered under clause 5(3), which attracts the damage test in clause 1(3). It would be a matter of judgment whether a prosecution should be brought. If it was, it would be for the jury to decide whether the right hon. Gentleman is guilty. I hope that I have satisfied the right hon. Gentleman on that point.
§ Mr. Hattersley
As we seek to be sensible in debating the Bill, I do not propose being categoric. However, I have grave doubts about the Minister's interpretation. We shall pursue it, but as we wish to deal with the Bill sensibly, I shall not attempt to score points until I am sure of my facts. However, the Minister answered another point by implication. I asked him if, in the circumstances he described, and in which I was informed of such an act, I 1098 would be committing an offence if I so informed a solicitor. As a solicitor is not, by any standard, a Crown servant, it seems that I would.
§ Mr. Patten
The first person that any sensible member of society would go to in the first instance would be the police.
§ Mr. Patten
Perhaps I may be permitted to conclude my argument.
The right hon. Member for Sparkbrook says that he wants the issue to be addressed in a sensible and rational way. That is precisely what I am seeking to do. The other half of the question concerns the position of Crown servants. [HON. MEMBERS: "It was about solicitors."] The right hon. Gentleman should first go to the tribunal, which has legal staff, and he should then go to the police.
§ Mr. Patten
The other point raised by the right hon. Gentleman concerns Crown servants. If a member of the security and intelligence services, or a notified person, discloses any security and intelligence information without authority, he commits an offence—and quite right, too. However, if he feels aggrieved—and this point concerns my hon. Friends the Members for Thanet, South and for Lancashire, West—he may refer to the staff counsellor. My hon. Friend the Member for Upminster gave an excellent example in the course of his brief and pointed remarks towards the end of the debate, which showed that the system is working. The mechanism whereby people can refer to their departmental heads and then seek redress works.
§ The Temporary Chairman
Order. We cannot have four hon. Members on their feet at once. The Minister is not giving way for the moment.
§ Mr. Patten
I shall not do so until I have dealt with important points raised much earlier, when for understandable reasons—
§ Mr. Patten
If interventions are concerned with what I am now discussing, I shall of course give way seriatim.
§ Mr. Campbell-Savours
The Minister told my right hon. Friend that if he had evidence he should take it to the police. Information about telephone tapping would only be in the hands of persons on the "contained secrecy" side of the law. If they made a statement which was then used in evidence to the police, could they not be prosecuted because they had been used as people giving evidence?
§ Mr. Patten
That is not the case. The right hon. Gentleman wanted to know whether, if he felt that a criminal offence had been committed, he would himself be liable under criminal law if he alleged as much to someone—he was unclear about who that would be. I have 1099 described the route down which any aggrieved citizen can go. It is a twin-track route consisting of the tribunal and the police, and is protected under clause 7.
§ Mr. Donald Anderson (Swansea, East)
Is not the remedy that the Minister suggests—that Mr. Citizen should go to the police and make a complaint—likely to prove illusory in practice, because it is probable that someone who leaks information from the secret services will not wish to be named in view of the possible repercussions for him? He could only say to the police, "I have it on good authority that my telephone is being tapped." The police would almost certainly reply, "We want better evidence than that before we are prepared to investigate."
§ Mr. Patten
As a distinguished barrister, the hon. Gentleman knows that sometimes complaints are laid before the police and investigated thereafter, on the basis not of naming the person concerned but of allegations that have come from a number of sources.
§ Mr. Andrew F. Bennett
The Minister has pushed the point that the logical course is to go to the tribunal. But, as was said earlier, many citizens in such circumstances would not know where to go. The Minister says that they should go to the police, but I suspect that many people would be very worried about going to the police in the first instance unless someone encouraged them that that was the right thing to do. They might consult a solicitor or a Member of Parliament. Can the Minister give an absolute assurance that they would not be committing an offence by giving the information to either a solicitor or a Member of Parliament?
§ Mr. Patten
There is no offence in the Bill of receiving information. If someone receives information that gives him cause to believe that a criminal offence is being committed, he should, like any citizen, seek the automatic redress of going straight to the police.
§ Mr. Gorst
If a disaffected, aggrieved member of the service went through all the correct procedures and at the end was not satisfied; if he believed that the matter was serious and of national importance; if he stood for Parliament and was elected, and then raised the matter on the Floor of the House, would he be committing an offence?
§ Mr. Patten
That is a very interesting question, and I am glad that my hon. Friend has asked it. I had never considered the possibility. But the answer is surely yes, because anything raised on the Floor of the House is privileged.
Let us suppose, however, that that aggrieved member of the service, having approached the staff counsellor and the director-general and tried to get through to the Prime Minister, still—amazingly enough—felt aggrieved, and went public. In that case he would indeed be committing an absolute offence under clause 1.
§ Mr. McWilliam
Evidence on telephone tapping might well come from a member of my trade union, the National Communications Union. Would the individual concerned automatically become a notified person? If so, who the hell could he complain to?
§ Mr. Patten
We shall have an opportunity on the next group of amendments to discuss such issues as notification. I do not want to stray out of order.
The right hon. Member for Blaenau Gwent raised an important point about parliamentary privilege and what happened to Churchill in the 1930s. I do not propose to follow him into the history of the 1930s, because I have not his expertise. It is important to note, however, that the blanket provision of section 2 was in force then. This Bill, as well as containing a number of other narrowing provisions, will abolish the offence of receiving information, so anyone receiving information now would not be committing an offence.
I cannot comment on the specific example given by the right hon. Gentleman because I do not know all the details, but members of the service, if they were breaching confidentiality, would be committing the absolute offence in the first part of clause 1. I am glad to learn that the right hon. Gentleman agrees with that interpretation.
§ Mr. Patten
Pre-1938, section 2 of the 1911 Act was on the statute book. I do not know what use was made of it in different cases, but the law was considerably more draconian than it will be.
§ Mr. Frank Cook (Stockton, North)
On a point of order, Mr. Cormack. I wonder whether you would remonstrate with the garrulous rabble below the Bar. We cannot hear what is being said because of the noise issuing from them.
§ Mr. Merlyn Rees (Morley and Leeds, South)
A Committee stage is for asking questions, and one has now been elucidated.
A Minister is a Crown servant. We shall come on the next set of amendments to whether notification is required, but let us assume that the Minister has been notified and thus comes under the legislation. If he then goes on to the Back Benches, he becomes an ex-Crown servant, but is still covered by the legislation. Let us suppose that he feels very strongly about something that has come his way. We are not saying that he should go to the police station and go through all the procedures. He would have an absolute right, as a Member of Parliament, to raise the issue on the Floor of the House. We are not going back to 1939 and the Duncan Sandys affair, which we wrote about in the Franks report because it was a factor in section 2. But what would happen to an ex-Minister who wanted to raise a great issue against his own Government or the Government of the day?
§ Mr. Patten
As the right hon. Gentleman says, we shall deal with notification on the next group of amendments. If that Minister was notified, he would be notified only about what he had learnt, under the then Official Secrets Act, while he was a Minister. He would remain notified in regard to the "secrets", to put it colloquially, that he had learnt during that period; that is a lifetime duty. Anything 1101 that he learned thereafter would not be subject to the notification provisions. I cannot imagine the circumstances, but I suppose for the sake of argument we must imagine these hypothetical cases. If that ex-Minister had gone through all the routes, he could then come to the Floor of the House and speak with absolute privilege. If he speaks outside the House, he will fall foul of the absolute offence.
§ Dr. Gilbert
What is the position of an ex-Minister who subsequently learns about circumstances of which he was not aware when he was in office?
§ Mr. Patten
If he learns about such circumstances through legal routes from people outside the service and outside his period as a Minister, he would not be committing the absolute offence. The Committee knows that parliamentary proceedings are privileged. I stand to be corrected by the right hon. Member for Blaenau Gwent, but I understand that statements attributed to an hon. Member in Parliament cannot be used against a Member in a court.
§ Mr. Peter Archer (Warley, West)
Whether we have agreed or not, up to now I have understood the Minister. He says that anyone who has once been notified is covered for information that has come into his possession for the period of the notification. Where is that spelt out in the Bill?
§ Mr. Patten
That will be the subject of the debate on the next set of amendments, and it may be better to address it then in the context of the amendments on notification.
§ Mr. Patten
No. I have given way to everyone who has risen and I must try to answr the debate. Many hon. Members have been sitting here for three hours or more.
In another of his telling speeches my hon. Friend the Member for Thanet, South spoke about the lifelong duty of confidentiality. He spoke about recent statements made in courts by learned judges on the application of civil law. But we are not here dealing with the civil law, which can operate before an event to stop it happening. We are dealing with the role of the criminal law in penalising offenders. We can look at that in greater detail during debate on the group of amendments about the public interest defence.
The question of the civil duty of confidentiality was considered in the Lords and the judgment was given on 13 October 1988. Lord Keith of Kinkel said on page 12 of his judgment:I regard this case"—we all know the case that he was talking about—as having established that members and former members of the Security Service do have a lifelong obligation of confidence owed to the Crown. Those who breach it, such as Mr. Wright, are guilty of treachery.That was the most telling judgment given in this area of the civil law. I have not yet come to the points raised by my hon. Friend the Member for Torbay (Mr. Allason) and by the right hon. Member for Plymouth, Devonport (Dr. Owen).
§ Mr. Aitken
I appreciate the Minister's selective use of the quotation. It is fair to say that we are arguing not about a duty of confidentiality but an absolute lifelong duty about which at least one judge, Mr. Justice Scott, said was not heard on this side of the iron curtain.
1102 I should like to press my hon. Friend on one key point. Perhaps we could return for a moment to the BBC series "My Country, Right or Wrong". In that series former members of the Security Service talked in totally innocuous terms about their experiences in the Secret Service only in so far as they affected public policy issues such as the desirability of ministerial accountability, oversight and so on. Are we to understand from the Minister that in future distinguished former Crown servants such as Lord Dacre of Glanton, Lord Annan and Mr. Day will be guilty of a criminal offence?
§ Mr. Patten
That depends on whether they were members of the service at the time and whether they were notified. My hon. Friend has quoted one learned judge and I have quoted another, but I did not quote out of context what Lord Keith said. I shall repeat it. He said:I regard this case as having established that members and former members of the Security Service do have a lifelong obligation of confidence owed to the Crown.That was the concluding judgment, and our proposals in the clause are fully consistent with it.
§ Mr. Richard Shepherd
That is a curious summary of the judgment. Perhaps my hon. Friend the Minister recalls that by a clear majority the Lords found other than the judgment that he has cited. Never at issue in front of them was the lifelong duty of confidentiality. In this debate we have cited Sir Leon Brittan's quote from them that the duty of confidentiality is correct and unexceptional. That is accepted. This whole testing debate is about the absoluteness of that duty. My hon. Friend the Minister serves himself ill by failing to address himself to the absoluteness of it in the light of assertions by judges in the context of our common law that it is inappropriate and wrong.
§ Mr. Patten
I used the word "assertions" because that was the word my hon. Friend used. I shall use the word "judgments" if that is what he prefers. These judgments have been made in civil courts. I explained earlier why I thought we needed the absolute offence. I hope that my hon. Friend paid close attention to that explanation. It will be in Hansard tomorrow for all who wish to read it.
I shall now turn to the six matters raised by the hon. Member for Linlithgow. I shall try to reply to them as briefly and accurately as I can. His first point was about Desmond Morton. I think that the hon. Gentleman recognised that it was not sensible to speculate on the outcome of a case from the past about the effects that it might have in future in the context of the Bill. I think that the hon. Gentleman was good enough to say that. His second important point was about telephone tapping. I have given an explanation about that and perhaps on reflection he will be satisfied with it. He has given notice that he may return to the matter.
My hon. Friend the Member for Holland with Boston spoke about reporting to the police, as did the right hon. Member for Sparkbrook. I gave assurances about access to the police, which everyone in Britain should have. The fourth point of the hon. Member for Linlithgow echoed what the right hon. Member for Plymouth, Devonport 1103 (Dr. Owen) said about the right of Crown servants to justify disclosures. I think that this argument is about the public interest defence which will be debated later. I look forward to further contributions by the hon. Member for Linlithgow and the right hon. Member for Devonport in that debate.
The hon. Member for Linlithgow raised the matter of Gartside and Outram, but I cannot follow him down that route because at that stage it was a matter for the civil law and was a civil case. The Bill does not change the operation of the civil law but purely alters the operation of the criminal law. There is a well-recognised principle that a person to whom an iniquitous matter has been communicated will always be free to report it to the proper quarter, usually the police. Nothing in the Bill and, funnily enough, nothing in the Official Secrets Act 1911 affects that principle.
§ Mr. Patten
I am going through a list of answers to six questions which the Committee wishes me to answer. When I have done that, I shall give way. As hon. Members have said, these questions need to be answered in full.
§ Mr. Archer
The courts have regarded it as important that the civil duty of confidentiality should be subject to the exception that there is no confidentiality in iniquity. Is the Minister saying that notwithstanding the fact that the Government want to impose a criminal sanction without any such exception?
§ Mr. Patten
There are much fiercer criminal sanctions under the 1911 Act than are proposed in this Bill. The letter was signed by Lord Croham and a number of others, including Sir Patrick Nairne, who is a constituent of mine and a most distinguished public servant who was at one time permanent secretary at the Department of Health and Social Security. The description in the letter is not new. I believe that Sir Douglas Wass made at least some of those suggestions to the Treasury and Civil Service Select Committee about three years ago. The description in the letter of the existing procedures is not up to date or accurate. It was subsequently modified to make clear that the head of the Civil Service would be prepared to hear personally appeals from officials who had followed the earlier stages of the procedure. I am advised that the Treasury and Civil Service Select Committee has said, in one of its reports, that there should be a trial before a system of external review is reconsidered.
§ Mr. Dalyell
Can we be quite clear as to what the Government think is inaccurate about the letter of Lord Croham, Sir Douglas Wass, Sir Patrick Nairne and Sir Frank Cooper?
§ Mr. Patten
I said that it was inaccurate only to the extent that the description of the procedures is not up to date. The procedure was modified in 1985 to make it clear that the head of the service would always be prepared to hear personally appeals from officials who had followed the earlier stages of the procedure. That is where the difference lies.
I turn now to the important amendment and new clause tabled by my hon. Friend the Member for Torbay (Mr. Allason) which was clearly supported by a number of hon. 1104 Members, including the right hon. Member for Devonport. My hon. Friend the Member for Torbay recognised that retired members of the security and intelligence services cannot, without authority, be free to disclose any information that they have as members of the service. That is something on which we all agree.
However, my hon. Friend is concerned that there should not be any unnecessary restraint on the ability of former members to publish with authority. His amendment proposes a mechanism for considering such publications. The necessary procedures are already in place. It is not desirable to accept a provision which could give a group of people outside the service the right to decide whether vital operational and other secrets should be published at large. Our intelligence service will be affected only if they restrict control over what is written by their members and former members. The duty of confidentiality cannot be an option; it must be a certainty. It is vital to the successful functioning of the services. Members and former members of the service know that they cannot publish material about their work without authority.
On procedure, I have little to add to what I said on Second Reading. It will not come as any surprise to those concerned to know that authorisation to members and former members to disclose information about their work will be rare and given only in exceptional circumstances. Again, my hon. Friend the Member for Torbay wishes to have those outside the ring of secrecy act on those within the ring of secrecy. They would either not know enough to make the judgments or they would have to be brought within the ring of secrecy and could not act as an independent, outside adjudicating body. If a former member ignores his or her obligations to the Crown and does not seek authorisation, or proceeds without receiving it, it must be right for the Government to consider action in the courts to enforce the fundamental principle of the duty of confidentiality. That is now well understood and, on that basis, I hope that my hon. Friend and the right hon. Gentleman will not press their amendments and new clause to a vote.
§ Mr. Corbett
It would be churlish not to recognise immediately that the Minister has done his best. There have been 19 speakers in this debate from the Back Benches. In various ways, 16 have opposed what the Minister, on behalf of the Government, is suggesting. Three of his Back Benchers have spoken, with some brevity, in favour of it.
I join in the general welcome to the hon. Member for Epping Forest (Mr. Norris). If it had to be a member of his party who won Epping Forest, it could not have been a better one. I hope that the hon. Member for Wyre Forest (Mr. Coombs) will accept it when I say that I did not mean to be offensive to him. I understand the difficulties of hon. Members who have to sit for long periods waiting to speak, but, none the less, this has been an extremely important debate and, as my hon. Friend the Member for Newham, South (Mr. Spearing) said, one of the highest calibre debates through which it has been our privilege to sit.
The hon. Member for Caithness and Sutherland (Mr. Maclennan) reminded the Minister that, in circumstances where the weight of opinion from both sides of the Committee has been so critical and hostile to what the Government propose, it behoves the Minister to tell his 1105 right hon. Friend, when he can lay hands on him, what happened during this debate and to encourage him and his colleagues to think again.
As was said by some of my hon. Friends and by the right hon. Member for Plymouth, Devonport (Dr. Owen), something has happened to the House of Commons. The Government can be like stone and totally deaf to a variety of views from both sides and all quarters, mostly hostile to what they are about, yet arrogantly believe that they can snap their fingers and get their supporters to trot meekly and silently through the Lobby.
It is significant that the Minister of State, despite many and repeated invitations, failed to answer the extremely important point raised by my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) about him being told by a serving member of the security or intelligence forces that his telephone is being illegally bugged or that his house is being, or has been, illegally entered. We have cleared up one point, which is that my right hon. Friend, or any hon. Member, can safely stand up in this place and reveal that under the mantle of parliamentary privilege. That is fine. We have also established, as those of us who had read the Bill rather than the press release knew, that the member of the security or intelligence forces who told my right hon. Friend of any illegality, commits an absolute and total offence and would find himself or herself in prison.
The Minister of State has not said—I hope that he will do so, because this is the Committee stage of the Bill and we ought to know—what will happen when either a Member of Parliament or a member of the public, faced with that information, thinks, "My God, I shall have to do something about it. I must get hold of a solicitor." There is no answer to what happens then. We can only infer that the passing on of that information to a solicitor is an offence under the Bill.
§ Mr. Corbett
I am grateful to the hon. Gentleman. I thought that he was trying to find a bolthole for the Minister and that perhaps priests should be excluded. However, it is a serious point. That could be another means of landing that person in trouble.
§ Mr. Geoffrey Dickens (Littleborough and Saddleworth)
Will the hon. Gentleman give way on the same point?
§ Mr. Corbett
We are pleased that the hon. Gentleman is joining in the debate, so I shall give way to him.
§ Mr. Dickens
Correct me if I am wrong, but I think that the public interest defence, whereby good is done by a disclosure, is a perfect defence and that the Director of Public Prosecutions would never bring a case against such a person. Since time immemorial this Chamber has always been filled with Members who are concerned about the views of Government, but there are hundreds of Members in their offices who are happy about what the Government are doing.
§ 9 pm
§ Mr. Corbett
The Committee will welcome the hon. Gentleman's first remarks, but he is two sets of amendments too early. As for his second point, had he 1106 been here earlier he would have heard at least one of his hon. Friends make the point that in private conversations many Conservative Members are deeply unhappy about the proposals. This is a House of Commons matter. We represent the people who sent us here to work against the arrogant, vested interests of the Executive.
The reason why the Minister is in such trouble—and it is obvious to him—is that he is seeking to lay upon members and former members of the security and intelligence services, itinerant Government contractors and their named staffs and groups and classes of such people a lifelong gag and a lifelong duty of silence. We are being told that when the Government say, "This is secret," it will remain a secret for ever—not just to the grave but, as my right hon. Friend the Member for Sparkbrook demonstrated, even beyond the grave and into the next world. The effect will be to pass that lifelong duty of confidentiality to other members of the family who have only a family connection with the person concerned. That is what has got the Government into trouble.
Another curious aspect of the Government's proposals is that over the years and under successive Governments the so-called lifelong duty has been only selectively applied. Harry Pincher, writing under the name of Chapman Pincher, could be "done" under this Bill for the books that he has written about spooks and spies. He received the information, knowing that it could only have been given to him on an unauthorised basis. Those who have read the books may wonder whether that was the case. Some or many of the leaks to Mr. Pincher that found their way into his books or into headlines splashed across the Daily Express may have been authorised leaks, in the sense that the information was given to him by highly placed people in the security and intelligence service who wanted to peddle a particular line.
It would be understandable if someone in MI5 or MI6 got hold of Mr. Pincher, suggested a quiet drink in a country pub or a walk, seemingly aimlessly, along the bank of a quiet river on a Sunday afternoon to deliver a message that what had been alleged about incompetence in the service was not so and that the so-called facts were this, that and the other, the better to defend the good name and reputation of the service. It is conceivable that that is how many of these things happened. There is another twist. Mr. Pincher could not know whether what was being said was true. The version would certainly collide with the earlier version but someone might be setting Mr. Pincher up.
As to the suggestion of the hon. Member for Torbay (Mr. Allason) of a publications review board, it would have been better had he made it clear that he is not suggesting a review board in the sense that following publication of a book the board would review it. The hon. Gentleman shakes his head and confirms that. It would be more in the business of looking through manuscripts or perhaps talking to authors before they started to prepare the manuscript.
The hon. Gentleman explained only that the board would have a chairman and three members appointed by the Home Secretary. He did not indicate who the members were likely to be. I should think that some of them would be old spooks called in from the field, selected Gower street warriors or the lately retired from the shadowy departments of Whitehall and Queen Anne's Gate. I do not think that a Conservative Home Secretary would stop the first four people he met in the street and ask them to make up the publications review board.
1107 In any event, I wonder how much good a review board could do. The decision would be left to nameless men; I must point out to my hon. Friends that they are bound to be fellows because fellows are always given these jobs. Nameless men would make decisions behind closed doors on the basis of criteria which the Minister of State would tell us could not possibly be published because they were secret.
Another point touches the heart of the Government's claims about the lifelong duty of confidentiality. Are the Minister and his colleagues seriously arguing that former spies are no longer able to make sensible judgments based upon their experience about what might or might not cause serious injury to the interests of the nation? On leaving office do spies suddenly become totally irresponsible in these matters? I do not believe it. Whatever criticisms my right hon. and hon. Friends and I may have of the security and intelligence services, I hope to God that they are not staffed by people that the Minister thinks would behave in that manner once they have retired. We are in trouble if that is so. That is one strong foundation on which the Government are building their case.
§ Mr. Dalyell
If my hon. Friend will allow me to support his argument, is it not a fact that Anthony Cavendish wrote his book in order to be fair to the late Maurice Oldfield? Government sources had cast a slur on Oldfield and Cavendish wrote the book to protect his old friend.
§ Mr. Corbett
My hon. Friend has illustrated the point extremely well, and the hon. Member for Aldridge-Brownhills (Mr. Shepherd) made a similar point. The Minister must not pretend that he is drawing lines. We are the people who want lines drawn. The Minister does not want to draw any lines because he wants anybody who has been involved, whether only up to his ankles or to the top of his head, not to say a word about it, under any circumstances, to anybody, even beyond the grave. That is why we get into difficulties.
Let us suppose, Mr. Cormack, that a former member of the security or intelligence services was engaged in covert operations in the Soviet Union in the 1960s, which were aimed not only at collecting sensitive information of possible intelligence use about intentions, but at trying to foment industrial and political unrest, touching on what one might call the economic well-being of that nation. Are the Government seriously suggesting that a former spy who has been engaged in such work and who wanted, 20 years later, to write about it would not hesitate, if only for a moment, and decide that his story could not be told?
Is it being suggested that someone who had had that experience would be careless about what would certainly follow if his story was published? He would, surely, decide that it should not be published, not to protect the necks of those in Whitehall, but because he would realise immediately that certain and lasting danger would be caused to relations between the Soviet Union and the United Kingdom and its allies. If the Minister is asserting that it is even remotely possible that such a person would decide to publish, he is insulting the integrity of those who have worked in the security and intelligence services.
§ Mr. Teddy Taylor (Southend, East)
I accept that point. Would the hon. Gentleman agree, however, that the high standards of these fine people can often be seriously 1108 affected if they are offered vast sums of money by some of the irresponsible papers and book publishers? Will he accept—and I voted against the Bill for reasons that he knows—that the danger of allowing a degree of liberality is that he is not talking about freedom, but the freedom to make a great deal of money irresponsibly?
§ Mr. Corbett
I may disappoint the hon. Gentleman, but I do not think that people who work in these services are open to such temptation. I am being open about that and I should like to think that my view is shared generally in the Committee. If I am wrong such people should never have been working in those services in the first place. I know that it is difficult to pull out such information at interviews, but I expect and assume—and I am sure that I shall be corrected by several Conservative Members if I am wrong—that the greatest care is taken by those who recruit on behalf of the security and intelligence services.
I must say to the hon. Member for Torbay that I am left with the impression that the board that he proposes would not be simply a publications review board but, because of the way in which it was made up, it would turn into an official publications review board and the Government would still be left in the position of deciding what should be published. The amendments tabled by some of his hon. Friends are a better proposition, although I acknowledge that his proposal is far better than anything on offer from the Government.
I started by saying that the Minister had done his best and I feel that I may not have been fulsome enough in my praise. We want to proceed to a vote on amendment number 71—in case that news has not reached you, Mr. Cormack—but I must say first to the Minister that immediately the debate is over tonight, I shall make it my business to nominate him for the Denis Norden Boy-Stood-On-The-Burning-Deck Award 1989.
§ Mr. Richard Shepherd
I should like to make just one observation on the Minister's response to the amendments and new clause tabled by my hon. Friends and the right hon. Member for Morleyy and Leeds, South (Mr. Rees). The House is confronted with the proposition, mounted by the Minister through clause 1, that there is an absolute duty of confidence and that there can be no countenancing of any circumstances in which the duty will not be absolute. My hon. Friends, and the right hon. Member for Morleyy and Leeds, South and myself want to be helpful but "absolute duty" is manifestly preposterous. We have tried to introduce the concept that there must be some test of reasonableness.
My hon. Friend the Minister of State did not address himself to the concept of triviality. Is there not a piece of information so trivial that it does not require the mounting of a criminal prosecution under the "absolute" assertion? That is one side of something that becomes more serious. We have been confronted with the "flat earth" approach of the "absolute" assertion. One almost felt that one was in the presence of a 12th century geographer who had discovered that the world was flat. Unfortunately, we live in a different century and the world is round.
We want to induce some help for the Government because their proposition makes our party and the Government look ridiculous by saying that in all 1109 circumstances every piece of information revealed must give rise to an absolute criminal offence. We shall certainly seek to divide the House also on the new clause.
§ Mr. John Patten
I am sorry that I was unable to oblige my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd). I have listened carefully to his arguments and he has listened to mine. We simply disagree on the important issue of disclosures to solicitors. If a person wishes to consult his or her solicitor as to what remedy he or she may want to have in respect of information received, such as his or her telephone being tapped, of course that person can do so because a communication between a person and his or her lawyer cannot form the subject matter of a prosecution against that person because he is covered by legal professional privilege.
§ Mr. Hattersley
Heaven knows, I do not want to prolong the debate and I am even more reluctant to ask the Minister of State to speak again, but to say that the solicitor's relationship with his client is covered by professional privilege is to imply that it is a privilege that transcends an Act of Parliament—and that is simply nonsense. I assure the Minister of State that no part of the Bill allows a client to consult a solicitor in the terms that I have described. [Interruption.] The Minister may be muttering that it does not have to be in the Bill, but if the Bill states that it is an offence to consult anyone except those who are named, and if a solicitor is not named, it does not seem any great flight of logic to assume that solicitors are ruled out. I do not see how the Minister of State—even after his performance today—could possibly argue what he argued a moment ago.
§ Mr. Aitken
I shall detain the House for only a few seconds but I should like to press the extraordinary ministerial assertion that we have just heard. It simply cannot be true that the doctrine of absolute lifelong confidentiality as laid down in the Bill can suddenly be changed in a wind-up speech by saying that there is a privilege for solicitors which transcends the statute—
§ Mr. Archer
I am grateful to the hon. Gentleman for giving way. Does he agree that solicitor-client privilege goes not to criminal liability, but to evidence?
§ Mr. Aitken
The right hon. and learned Gentleman makes my point for me. We simply cannot accept the assertion that has just been made.
I should like to ask my hon. Friend the Minister of State one final question. He could have dealt with quite a few of the points that have been made tonight about trivia and solicitors by referring to the provision that the Attorney-General's fiat is necessary before a prosecution can commence. At least that provision would give some safeguards. I am not at the Dispatch Box and I am not a Minister, but—
§ Mr. Aitken
I am grateful to the hon. Gentleman for that—it would be a triumph of hope over experience.
At least I can see one let-out for some of the absurdities that we have heard. It could be said that solicitors, trivia, and BBC radio programmes dealing with public policy 1110 could be stopped from the statutory doctrine of absolute confidentiality by the use of the Attorney-General's fiat. That is the one argument that might make sense and it has not been deployed. Has my hon. Friend the Minister forgotten it or am I wrong? Will he answer that point when he returns to the assertion of privilege for solicitors, which is quite mysterious?
§ Mr. Maclennan
We listened to the Minister's reply with dismay. He failed to deal with the central question raised by the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) and the hon. Member for Aldridge-Brownhills (Mr. Shepherd) about revelation of iniquity. If the clause is passed unamended, the people of this country will have to rely on members of the Security Service breaking the criminal law to protect them from iniquity of which they are aware but which it would be an offence to reveal. In his reply, the Minister opened his mouth and out gushed silence.
§ Mr. Andrew F. Bennett
On a point of order, Mr. Cormack. Will you give the Committee some guidance about how to vote on the amendments? As I understand it, a request has been made to vote on amendments Nos. 71 and 14. Will you confirm that we are able to vote on amendment No. 71 now but that we shall have to debate the next group of amendments before voting on amendment No. 14?
§ The Temporary Chairman
The hon. Gentleman is a master of procedure and has answered his own point of order.
§ Question put, That the amendment be made: —
§ The Committee divided: Ayes 215, Noes 263.1113
|Division No. 51]||[9.21 pm|
|Abbott, Ms Diane||Clark, Dr David (S Shields)|
|Aitken, Jonathan||Clay, Bob|
|Allason, Rupert||Clelland, David|
|Allen, Graham||Clwyd, Mrs Ann|
|Anderson, Donald||Cohen, Harry|
|Archer, Rt Hon Peter||Coleman, Donald|
|Armstrong, Hilary||Cook, Robin (Livingston)|
|Ashdown, Rt Hon Paddy||Corbett, Robin|
|Ashton, Joe||Corbyn, Jeremy|
|Banks, Tony (Newham NW)||Cousins, Jim|
|Barnes, Harry (Derbyshire NE)||Cox, Tom|
|Barnes, Mrs Rosie (Greenwich)||Cryer, Bob|
|Barron, Kevin||Cummings, John|
|Battle, John||Cunliffe, Lawrence|
|Beckett, Margaret||Cunningham, Dr John|
|Beith, A. J.||Dalyell, Tam|
|Benn, Rt Hon Tony||Darling, Alistair|
|Bennett, A. F. (D'nt'n & R'dish)||Davies, Rt Hon Denzil (Llanelli)|
|Bermingham, Gerald||Davies, Ron (Caerphilly)|
|Bidwell, Sydney||Davis, Terry (B'ham Hodge H'l)|
|Boateng, Paul||Dewar, Donald|
|Body, Sir Richard||Dixon, Don|
|Boyes, Roland||Dobson, Frank|
|Bradley, Keith||Doran, Frank|
|Bray, Dr Jeremy||Douglas, Dick|
|Brown, Gordon (D'mline E)||Dunnachie, Jimmy|
|Brown, Ron (Edinburgh Leith)||Eastham, Ken|
|Bruce, Malcolm (Gordon)||Ewing, Harry (Falkirk E)|
|Buchan, Norman||Ewing, Mrs Margaret (Moray)|
|Buckley, George J.||Fearn, Ronald|
|Caborn, Richard||Fields, Terry (L'pool B G'n)|
|Callaghan, Jim||Fisher, Mark|
|Campbell, Menzies (Fife NE)||Flannery, Martin|
|Campbell, Ron (Blyth Valley)||Flynn, Paul|
|Campbell-Savours, D. N.||Foot, Rt Hon Michael|
|Canavan, Dennis||Foster, Derek|
|Cartwright, John||Foulkes, George|
|Fyfe, Maria||Michael, Alun|
|Galbraith, Sam||Michie, Bill (Sheffield Heeley)|
|Galloway, George||Michie, Mrs Ray (Arg'l & Bute)|
|Garrett, John (Norwich South)||Mitchell, Austin (G't Grimsby)|
|Garrett, Ted (Wallsend)||Moonie, Dr Lewis|
|George, Bruce||Morgan, Rhodri|
|Gilbert, Rt Hon Dr John||Morley, Elliott|
|Gilmour, Rt Hon Sir Ian||Morris, Rt Hon A. (W'shawe)|
|Godman, Dr Norman A.||Mowlam, Marjorie|
|Golding, Mrs Llin||Mullin, Chris|
|Gordon, Mildred||Murphy, Paul|
|Gorst, John||Nellist, Dave|
|Graham, Thomas||Oakes, Rt Hon Gordon|
|Grant, Bernie (Tottenham)||O'Brien, William|
|Griffiths, Nigel (Edinburgh S)||Orme, Rt Hon Stanley|
|Griffiths, Win (Bridgend)||Owen, Rt Hon Dr David|
|Grocott, Bruce||Parry, Robert|
|Hardy, Peter||Pendry, Tom|
|Harman, Ms Harriet||Pike, Peter L.|
|Hattersley, Rt Hon Roy||Powell, Ray (Ogmore)|
|Heffer, Eric S.||Prescott, John|
|Henderson, Doug||Primarolo, Dawn|
|Hinchliffe, David||Quin, Ms Joyce|
|Hogg, N. (C'nauld & Kilsyth)||Radice, Giles|
|Holland, Stuart||Randall, Stuart|
|Home Robertson, John||Redmond, Martin|
|Hood, Jimmy||Rees, Rt Hon Merlyn|
|Howarth, George (Knowsley N)||Reid, Dr John|
|Howell, Rt Hon D. (S'heath)||Roberts, Allan (Bootle)|
|Howells, Geraint||Rooker, Jeff|
|Hughes, John (Coventry NE)||Ross, Ernie (Dundee W)|
|Hughes, Robert (Aberdeen N)||Rowlands, Ted|
|Hughes, Roy (Newport E)||Ruddock, Joan|
|Illsley, Eric||Salmond, Alex|
|Ingram, Adam||Sedgemore, Brian|
|Janner, Greville||Sheerman, Barry|
|Johnston, Sir Russell||Sheldon, Rt Hon Robert|
|Jones, Barry (Alyn & Deeside)||Shepherd, Richard (Aldridge)|
|Jones, Martyn (Clwyd S W)||Shore, Rt Hon Peter|
|Kaufman, Rt Hon Gerald||Short, Clare|
|Kennedy, Charles||Sillars, Jim|
|Kirkwood, Archy||Skinner, Dennis|
|Lambie, David||Smith, Andrew (Oxford E)|
|Leadbitter, Ted||Smith, C. (Isl'ton & F'bury)|
|Leighton, Ron||Smith, Rt Hon J. (Monk'ds E)|
|Lestor, Joan (Eccles)||Spearing, Nigel|
|Lewis, Terry||Steel, Rt Hon David|
|Litherland, Robert||Stott, Roger|
|Livsey, Richard||Strang, Gavin|
|Lloyd, Tony (Stretford)||Straw, Jack|
|Lofthouse, Geoffrey||Taylor, Mrs Ann (Dewsbury)|
|Loyden, Eddie||Turner, Dennis|
|McAllion, John||Vaz, Keith|
|McAvoy, Thomas||Wall, Pat|
|McCartney, Ian||Wallace, James|
|Macdonald, Calum A.||Walley, Joan|
|McFall, John||Warden, Gareth (Gower)|
|McKay, Allen (Barnsley West)||Wareing, Robert N.|
|McKelvey, William||Welsh, Andrew (Angus E)|
|McLeish, Henry||Welsh, Michael (Doncaster N)|
|Maclennan, Robert||Wigley, Dafydd|
|McNamara, Kevin||Williams, Rt Hon Alan|
|McTaggart, Bob||Williams, Alan W. (Carm'then)|
|McWilliam, John||Wilson, Brian|
|Madden, Max||Winnick, David|
|Mahon, Mrs Alice||Wise, Mrs Audrey|
|Marek, Dr John||Worthington, Tony|
|Marshall, David (Shettleston)||Wray, Jimmy|
|Marshall, Jim (Leicester S)|
|Martlew, Eric||Tellers for the Ayes:|
|Maxton, John||Mr. Frank Haynes and|
|Meacher, Michael Meale. Alan||Mr. Frank Cook.|
|Adley, Robert||Arbuthnot, James|
|Alexander, Richard||Arnold, Jacques (Gravesham)|
|Alison, Rt Hon Michael||Arnold, Tom (Hazel Grove)|
|Amess, David||Ashby, David|
|Amos, Alan||Aspinwall, Jack|
|Atkins, Robert||Gorman, Mrs Teresa|
|Atkinson, David||Gow, Ian|
|Baker, Nicholas (Dorset N)||Gower, Sir Raymond|
|Baldry, Tony||Grant, Sir Anthony (CambsSW)|
|Batiste, Spencer||Greenway, Harry (Eating N)|
|Beggs, Roy||Greenway, John (Ryedale)|
|Bellingham, Henry||Gregory, Conal|
|Bendall, Vivian||Griffiths, Peter (Portsmouth N)|
|Bennett, Nicholas (Pembroke)||Grist, Ian|
|Bevan, David Gilroy||Ground, Patrick|
|Blackburn, Dr John G.||Grylls, Michael|
|Blaker, Rt Hon Sir Peter||Hamilton, Hon Archie (Epsom)|
|Bonsor, Sir Nicholas||Hamilton, Neil (Tatton)|
|Boscawen, Hon Robert||Hanley, Jeremy|
|Boswell, Tim||Hargreaves, A. (B'ham H'll Gr')|
|Bowden, A (Brighton K'pto'n)||Harg reaves, Ken (Hyndburn)|
|Bowden, Gerald (Dulwich)||Harris, David|
|Bowis, John||Haselhurst, Alan|
|Boyson, Rt Hon Dr Sir Rhodes||Hayward, Robert|
|Braine, Rt Hon Sir Bernard||Heathcoat-Amory, David|
|Brandon-Bravo, Martin||Heddle, John|
|Brazier, Julian||Hicks, Mrs Maureen (Wolv' NE)|
|Bright, Graham||Hicks, Robert (Cornwall SE)|
|Browne, John (Winchester)||Higgins, Rt Hon Terence L.|
|Bruce, Ian (Dorset South)||Hill, James|
|Buchanan-Smith, Rt Hon Alick||Hind, Kenneth|
|Buck, Sir Antony||Hogg, Hon Douglas (Gr'th'm)|
|Budgen, Nicholas||Holt, Richard|
|Burns, Simon||Hordern, Sir Peter|
|Burt, Alistair||Howard, Michael|
|Butcher, John||Howarth, Alan (Strat'd-on-A)|
|Butler, Chris||Howell, Ralph (North Norfolk)|
|Butterfill, John||Hughes, Robert G. (Harrow W)|
|Carlisle, John, (Luton N)||Hunt, David (Wirral W)|
|Carrington, Matthew||Hunt, John (Ravensbourne)|
|Carttiss, Michael||Hunter, Andrew|
|Cash, William||Hurd, Rt Hon Douglas|
|Channon, Rt Hon Paul||Irvine, Michael|
|Chapman, Sydney||Irving, Charles|
|Chope, Christopher||Jack, Michael|
|Churchill, Mr||Jackson, Robert|
|Clark, Hon Alan (Plym'th S'n)||Janman, Tim|
|Clark, Sir W. (Croydon S)||Jessel, Toby|
|Clarke, Rt Hon K. (Rushcliffe)||Jones, Gwilym (Cardiff N)|
|Conway, Derek||Jones, Robert B (Herts W)|
|Coombs, Anthony (Wyre F'rest)||Kellett-Bowman, Dame Elaine|
|Coombs, Simon (Swindon)||Key, Robert|
|Cope, Rt Hon John||Kilfedder, James|
|Cran, James||King, Roger (B'ham N'thfield)|
|Critchley, Julian||Knight, Greg (Derby North)|
|Currie, Mrs Edwina||Knight, Dame Jill (Edgbaston)|
|Curry, David||Knowles, Michael|
|Davies, Q. (Stamf'd & Spald'g)||Lee, John (Pendle)|
|Devlin, Tim||Leigh, Edward (Gainsbor'gh)|
|Dickens, Geoffrey||Lennox-Boyd, Hon Mark|
|Dicks, Terry||Lightbown, David|
|Dorrell, Stephen||Lilley, Peter|
|Douglas-Hamilton, Lord James||Lloyd, Sir Ian (Havant)|
|Dunn, Bob||Maclean, David|
|Durant, Tony||McLoughlin, Patrick|
|Eggar, Tim||Madel, David|
|Evennett, David||Mans, Keith|
|Favell, Tony||Maples, John|
|Fenner, Dame Peggy||Maude, Hon Francis|
|Field, Barry (Isle of Wight)||Mellor, David|
|Finsberg, Sir Geoffrey||Meyer, Sir Anthony|
|Fookes, Dame Janet||Miller, Sir Hal|
|Forman, Nigel||Mills, Iain|
|Forsyth, Michael (Stirling)||Miscampbell, Norman|
|Forsythe, Clifford (Antrim S)||Mitchell, Andrew (Gedling)|
|Forth, Eric||Mitchell, Sir David|
|Franks, Cecil||Moate, Roger|
|Freeman, Roger||Molyneaux, Rt Hon James|
|Fry, Peter||Monro, Sir Hector|
|Gale, Roger||Morris, M (N'hampton S)|
|Qardiner, George||Morrison, Rt Hon P (Chester)|
|Gill, Christopher||Moss, Malcolm|
|Glyn, Dr Alan||Mudd, David|
|Goodhart, Sir Philip||Nelson, Anthony|
|Goodson-Wickes, Dr Charles||Neubert, Michael|
|Newton, Rt Hon Tony||Squire, Robin|
|Nicholls, Patrick||Stanbrook, Ivor|
|Nicholson, David (Taunton)||Stanley, Rt Hon Sir John|
|Nicholson, Emma (Devon West)||Steen, Anthony|
|Onslow, Rt Hon Cranley||Stern, Michael|
|Oppenheim, Phillip||Stevens, Lewis|
|Page, Richard||Stewart, Allan (Eastwood)|
|Paice, James||Stewart, Andy (Sherwood)|
|Patten, Chris (Bath)||Stokes, Sir John|
|Patten, John (Oxford W)||Stradling Thomas, Sir John|
|Pawsey, James||Summerson, Hugo|
|Peacock, Mrs Elizabeth||Taylor, Ian (Esher)|
|Porter, David (Waveney)||Taylor, John M (Sollhull)|
|Portillo, Michael||Taylor, Teddy (S'end E)|
|Powell, William (Corby)||Temple-Morris, Peter|
|Price, Sir David||Thompson, D. (Calder Valley)|
|Ratfan, Keith||Thompson, Patrick (Norwich N)|
|Raison, Rt Hon Timothy||Thorne, Neil|
|Rathbone, Tim||Thurnham, Peter|
|Redwood, John||Townend, John (Bridlington)|
|Rhodes James, Robert||Townsend, Cyril D. (B'heath)|
|Riddick, Graham||Tracey, Richard|
|Ridley, Rt Hon Nicholas||Trippier, David|
|Rifkind, Rt Hon Malcolm||Trotter, Neville|
|Roberts, Wyn (Conwy)||Twinn, Dr Ian|
|Roe, Mrs Marion||Vaughan, Sir Gerard|
|Ross, William (Londonderry E)||Viggers, Peter|
|Rossi, Sir Hugh||Waddington, Rt Hon David|
|Rost, Peter||Walker, A. Cecil (Belfast N)|
|Rowe, Andrew||Walker, Bill (T'side North)|
|Sackville, Hon Tom||Waller, Gary|
|Sainsbury, Hon Tim||Ward, John|
|Sayeed, Jonathan||Wardle, Charles (Bexhill)|
|Scott, Nicholas||Watts, John|
|Shaw, David (Dover)||Wells, Bowen|
|Shaw, Sir Giles (Pudsey)||Wheeler, John|
|Shaw, Sir Michael (Scarb')||Whitney, Ray|
|Shelton, Sir William (Streatham)||Widdecombe, Ann|
|Shephard, Mrs G. (Norfolk SW)||Wilkinson, John|
|Shepherd, Colin (Hereford)||Wilshire, David|
|Shersby, Michael||Wolfson, Mark|
|Sims, Roger||Wood, Timothy|
|Smith, Sir Dudley (Warwick)||Yeo, Tim|
|Smith, Tim (Beaconsfield)||Young, Sir George (Acton)|
|Soames, Hon Nicholas|
|Speed, Keith||Tellers for the Noes:|
|Speller, Tony||Mr. Kenneth Carlisle and|
|Spicer, Michael (S Worcs)||Mr. Michael Fallon.|
§ Question accordingly negatived.
§ Mr. Richard Shepherd
I beg to move amendment No. 13, in page 1, line 7, leave out 'a person' and insert'a Crown servant or government contractor'.
§ The Temporary Chairman
I suggest that it would be for the convenience of the Committee to discuss at the same time the following amendments: No. 38, in clause 7, page 7, line 2, leave out from 'servant' to end of line 5.
No. 39, in clause 8, page 8, line 1, leave out subsection (3).
§ Mr. Richard Shepherd
The purpose of this series of amendments is to take up the Government's own distinction and limit the range of people who can be notified by a Minister that they are under the same absolute bar on disclosures as members of the security and intelligence services. Under the amendment, only Crown servants and Government contractors could be notified. Those are the only people whom Ministers have said might need to be notified.
Clause 1(1)(b) allows a Minister to extend the absolute bar on the disclosure of information about security and intelligence to certain designated people who are not themselves members or former members of the security or 1114 intelligence services. Clause 1(6) states that this may be done where the person's work is connected with the security and intelligence services and where the bar on disclosure is required in the interest of national security.
In explaining this provision, the Government have said that it will apply only to certain civil servants and members of the armed forces. But the power under the Bill goes beyond that by permitting the designation of "any person."
According to paragraph 45 of the White Paper, designation would apply to:those who work closely in support of or who are in frequent contact with the services, such as certain members of the armed forces who provide technical support for the services, or officials in specified posts in certain Departments who deal with the services on a regular basis as part of their normal duties.
The Secretary of State said last July that designation would apply to civil servantsin my private office … who nevertheless acquire, inevitably, an extensive knowledge of the services."—[Official Report, 22 July 1988; Vol. 137, col. 1415.]The Minister of State, on the same day, at column 1478, suggested that it would apply to departmental principal private secretaries who convey information about the services to their own Secretaries of State.
Although Ministers have said that designation is intended for civil servants, the Bill refers to "any person". No explanation for this wide definition has been given arid its purpose is unclear. It has led to speculation that people such as the Comptroller and Auditor General, or even newspaper editors sitting on the D notice committee, might be designated, making them subject to the absolute bar on disclosures about security and intelligence, denying them the defences provided in clause 1(4). The Government have so far given no indication that this is or is not intended.
The effect of the amendment is to restrict designation' o those people for whom Ministers have said designation is intended—that is, Crown servants. The definition of "Crown servants" in the Bill, in clause 12(1), is wide and includes civil servants, Ministers, members of the armed forces and police officers. The amendment would also allow Government contractors to be designated, which would permit the designation of people who might occasionally assist the services on a freelance basis. We are clearly concerned that that power of designation should not reach out and grasp anyone and thus place an inhibition on them that was not intended by Ministers when they promoted this measure and argued the case in the White Paper.
§ Mr. Archer
The hon. Member for Aldridge-Brownhills (Mr. Shepherd) has made out clearly and effectively the case for the amendment and it would not improve if I sought to repeat it. I seek only some guidance from the Minister on a matter about which I ventured to intervene at an earlier stage in our debates. As I understood it, the Minister said that the effect of the draftsmanship of the Bill was that someone on whom a notice had been served should be inhibited from disclosing information which came into his possession during the currency of the notice, and should continue to be inhibited even after the notice had been withdrawn. He would not, however, be affected by information which came into his possession afterwards.
If that were the position, whether I agreed or disagreed with it, I could see the reasoning behind it, because that 1115 clearly is what the Government intend to do. I wonder, however, whether the draftsmanship achieves that, because clause 1(1) says:A person who is or has been— …(b) a person notified that he is subject to the provisions of this subsection, is guilty of an offence if … he discloses any information".I should have thought that he had been a person notified, whatever happened afterwards.
If we then look at clause 1(7), it is fairly clear what it is intended should happen. It states:A notification … shall be in force until revoked by a further notice in writing".That I understand, but surely the effect of a revocation is that he is then not a person notified.
§ Mr. Archer
The Minister says that I have that wrong. I have always spoken English, however, and that appears to be the effect of ordinary English. A revocation means that he is no longer a person notified. If that is so, he is not a person notified within clause 1(1) and, therefore, does not commit any offence at all even if he discloses information.
That happens to be the effect of the draftsmanship, but I ask whether the Government have really achieved what they set out to achieve in the Bill. Whatever the merits of what they set out to achieve, what I have put forward would be nonsense.
§ Mr. Gorst
What worries me about the way in which this clause is drafted is that, if Ministers are to be notifiable people, there is nothing which I have read here which says at what moment in time they might be notified. One can envisage a situation in which a Minister is not a notified person when he serves his Government, but when he goes on to the Back Benches and another Government come in, that Government could discover that he knew something that was highly embarrassing and slap a notification on him to keep him quiet.
I am sure that my hon. Friend the Minister will assure me that that is not the case. Can we be certain, if it is not the case, that it cannot be used in that way? Is the drafting adequate to provide that protection?
§ Mr. Heffer
I am confused because of previous discussions that we have had on the question of "a person". The concept of "a person" worries me. In an earlier debate, the Minister said that an ordinary person could go to the tribunal and he should also notify the police. Supposing, however, that that person has his house burgled, believes that it was carried out by the security services and decides to go to the police. He says to the police, "I think it is the security services who have done it." The police say, "Right, we'll find out." When they find out that it is the security services they will not want to know any more. That will be the end of the matter.
On one occasion I had my house burgled and the first question that the policeman who came to see me asked was, "Do you think it was political, Mr. Heffer? Have they taken any of your papers?" I knew why he asked that. If it had been political and papers had been taken, he would 1116 have said, "It has nothing to do with us." He did not have much to do with it anyway. He merely said, "You're well insured, so you'll be all right."
What do we have in the police service? Special branch are the leg men for the security men. We all know that. We were not born yesterday and we did not fall off a Christmas tree. That is what happens and the Minister must know it.
I am a bit worried about this business of "a person". He may well think that he is notified and then he is told he is. What does he do then? I am not certain that he could go to his Member of Parliament. The position is so confusing. It could be cleared up without question by the Government accepting this amendment. It makes the position 100 per cent. clear. The Government would be wise to accept the amendment because it would get rid of many of the arguments—some will continue to apply to other people—for ordinary people. I hope that hon. Members will accept this sound, sensible amendment.
§ Mr. Aitken
My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) has done the Committee a service by tabling this amendment. As we have established from our debate on clause 1, it is a limitation on civil rights to be put in the category in which the doctrine of absolute, lifelong, eternal confidentiality applies. If people are to be designated, the Committee rightly, will want a more precise definition of who is to be designated than the one contained in the Bill.
The Home Secretary has given the impression that this category of persons will be confined more or less to people in his Private Office who have dealings with the Security Service. Could it go much wider than that? Those who work closely with the security services cover a wide category of people. I wonder whether my hon. Friend the Member for Torbay (Mr. Allason) or Chapman Pincher could be covered by this. Clearly, designation must not be unfairly used.
There is a crucial point why this definition is deliberately vague and it must relate to agents in the Security Service. There are two types of agent. There are above-the-line agents, who, in the event of an operation being compromised, cannot be denied because they are known to exist and Ministers must ultimately take responsibility for their existence if an operation is botched, there is a row and the security services' involvement is clear. There are also below-the-line agents who are deniable under all circumstances. They are buried beyond reach of theoretical knowledge of Ministers and people like them.
I cannot see any other justification for having this vagueness about designating people. Why not just leave the definition at Crown servants or Government contractors? The answer must be in this difficult twilight zone of above and below-the-line agents.
Again, we get into deep complications. If a below-the-line agent is to be designated, he cannot be a below-the-line agent. He is no longer deniable under all circumstances. In leaving the definition as vague as this to be able to designate below-the-line agents, the Government are compromising and revealing in advance the whole nature of below-the-line agents.
§ Mr. Richard Shepherd
I am slightly bemused, because I thought we were placing on a statutory basis the very existence of such people. Will they not become above-the-line by definition?
§ Mr. Aitken
If the Home Secretary or those with authority for the security services want the power to designate as people who must observe the absolute doctrine of confidentiality, those other than Crown servants and Government contractors, they are making a rod for their own backs. That is, unless a totally unfair and arbitrary designation is applied—in which case we want to know about it—in respect of agents. That is why the wording of the Bill is left vague. It is a dangerous hostage to fortune to designate such people, if the point of having them in the first place is that they will always be deniable. Designation will mean that they are no longer deniable. The clause is misguided and needs to be narrowed. That is why I support my hon. Friend's amendment.
§ Mr. Gorst
Will my hon. Friend address himself to another point that he has almost inadvertently touched upon? I refer to the question whether people can refuse to be designated. If I am an innocent passer-by and witness something that it is inconvenient for me to know, can someone slap a designation notice on me, to keep me quiet?
§ Mr. Aitken
Such a question is more appropriately addressed to the Minister. However, one ought to ask for the record whether there will be any appeal against designation. Are there any arrangements for fighting unfair designation. As we know, the security services make mistakes in naming people or in placing them in categories, so it is possible that they could wrongly designate someone. There ought to be a procedure for dealing with that.
§ Mr. Corbett
This will get worse before it gets better. Paragraph 47 of the White Paper—although the Home Secretary denied it when we debated that document—states:the Government proposes that there should be a power for the responsible Minister to designate individuals or groups.Whether such a group could include Members of Parliament we shall never know. I say that because paragraph 48 states:The list of persons designated would not, for obvious reasons, be made public.
§ Mr. Aitken
Again, the word "groups" must apply to people who might have been engaged in a below-the-line security operation. It could include a group of boatmen moving our agents.
§ Mr. Ashdown
Could not such a group include all the employees of a private security firm employed by the Government or by the security services?
§ Mr. Aitken
Whether the word "groups" includes the employees of a security firm, boatmen, or even special boatmen—as the hon. Gentleman once was—it may be convenient to give the power to designate. I believe that the Committee will be wise, in the best interests of security, not to allow power of designation on the scale for which the Bill provides.
§ Mr. Rees
There are so many cross-threads in the Bill. In our earlier debates today we have, understandably, found ourselves in danger of picking up on points that will 1118 arise later, but they are germane to the earlier arguments. We have successfully avoided doing so except on one or two occasions.
In this series of amendments, for example, there looms the matter of public interest—as to whether a person, notified or not, has a right at some pitch to reveal information. That is a point to which we can return, and it applies whether the group is large or small. I wish to make it clear, although I shall not develop the point, that despite all the difficulties involved I still believe that the Franks committee was right and adoption of its recommendation would have saved a lot of bother in this Committee. Franks said that the only people criminally vulnerable under new secrets legislation should be those who reveal information classified as secret and above. That would have a bearing on what we are discussing, but I will save my fire until later.
The amendment is intended to limit the definition of notified persons. We must, of course, be clear about who is included in the wider group of persons, and I shall put my mind to that shortly. But what about Ministers? As a junior Minister, under the Mountbatten reforms, like the hon. and learned Member for Colchester, North (Sir A. Buck) at a later date, I was Army Minister and RAF Minister. I cannot recall signing a bit of paper or being nominated by anyone, but as RAF Minister—which is what I was, although changes had taken place—I received information that I would not and will never discuss with anyone about the targeting of the RAF at the time. Under the Franks recommendations such material is secret and above, and in any case who would want to reveal it?
§ Sir Antony Buck (Colchester, North)
For the sake of accuracy, may I point out that although I was a Member of Parliament for an Army constituency, I was Minister for the Royal Navy at the relevant time?
§ Mr. Rees
Between us we cover the waterfront.
I was a service man. The point that I am making is that no one designated or nominated me so far as I recall, but I remember—as I imagine the hon. and learned Gentleman does—rather pleasant occasions when senior Army officers, and later senior RAF officers, came in to introduce themselves. We talked about their work and ended up discussing such subjects as what happened during the war. I remember a man coming to talk to me about the need to keep papers secure and not leave them lying about, but we were aware of what to do without being told.
The Minister may tell me that my question is dealt with in clause 7, which some of us have been looking at but do not entirely understand. However, I should like to know how long the notification lasts. Will there be a day when someone writes to say, "You are no longer a notified person"? We built into the Franks recommendations that papers in every Department—heaven knows how many thousands of MOD papers are secret and above, but there are not so many in the Department of Education—would be reclassified from time to time. When they fell below the "secret and above" classification in two, three, four or 10 years' time, they would not come under the criminal sanctions recommended in the Franks report. The time factor, therefore, was dealt with through the reclassification of documents.
My question is, how does the time factor come into this legislation? A problem is raised for the group of people 1119 —Ministers, ex-Ministers or more usually ex-Prime Ministers—who write long memoirs, in some cases as many as nine volumes, breaking the Official Secrets Act on almost every page. The Prime Ministers concerned have probably never signed a bit of paper, and in any case they are allowed to get away with it because it is nonsense to prevent information from being revealed 20 or 30 years after the event. How do the Government intend to deal with the question of timing?
Although we have attempted to narrow the definition in the clause, we are still left with Ministers under the heading of Crown servants. Who will have the responsibility of making the Prime Minister a notified person? I presume that other Ministers will be notified by the Prime Minister. Who will administer the notification to the Prime Minister? I am not joking about this. Perhaps Prime Ministers will notify themselves that they are notified persons. What is the procedure for that? I fully appreciate that one or two people in the Private Office and possibly someone who does the typing would have to be secure. They will have to be notified persons. A small group of people would not be notified and it will not be difficult for the Department to decide—
§ It being Ten o'clock, The CHAIRMAN left the Chair to report progress and ask leave to sit again.
§ Committee report Progress.
§ Bill again considered in Committee.
§ Question again proposed, That the amendment be made.
§ Mr. Rees
I should like to emphasise what the hon. Member for Thanet, South (Mr. Aitken) said about agents other than what I suppose are called contract agents who are not full-time with MI5. At this time no one likes to talk about this sort of thing, but we have to be sure about how such people are dealt with under the notification process. If someone is taken on, either by a security firm or to act for MI5 under certain conditions, does that person become notified and how long does the notification last? I ask that because—foolishly, and not altogether by design—I found myself on a programme discussing security. I thought that the programme would last an hour, but it went on for half the night. It was called "After Dark" and had no time limit.
I wrote to the Home Secretary because a chap called Gary Murray on the programme made the most astonishing allegations about being trained by MI5, saying that people from private security firms were trained on Ministry of Defence premises. Then he made allegations about certain prominent cases in which my hon. Friend the hon. Member for Linlithgow (Mr. Dalyell) had been involved. True or false, that chap was breaking section 2 of the Official Secrets Act by his allegations. Unless he becomes a notified person, he will certainly break the law under the proposed legislation. I have no strong views about that, but if I had I would make them known in the later debate on amendments about the public interest.
I emphasise that we have to be clear about how such people are covered. It will be interesting to note to what degree the measures are used. In that respect, the other secret service—the SIS—is not covered because, rightly or 1120 wrongly, it engages in activities abroad. I want to be assured that there are no circumstances in which state security services other than MI5 operate in this country.
My last heading is journalists.
§ Mr. Ashdown
The right hon. Gentleman mentioned the other security service—the SIS. Could it not operate legitimately in Britain, but against foreign targets?
§ Mr. Rees
The clear division is MI5 at home and MI6 abroad. If anyone is responsible for operations in this country, it should be the Home Secretary—not the Foreign Secretary. Wires would be crossed if such a case arose. Some action would be carried out at the request of MI6, but I want to be sure what class of security officer would be involved in this notification procedure.
I have just been handed a copy of a letter that the Home Secretary wrote to me.
§ Mr. Rees
I did not know that my hon. Friend had a copy of that letter. In it the Home Secretary denies the remarks about the security services, although he does so in the usual way, as I did myself many times, saying that it is Government practice not to confirm or deny allegations about operations butI can assure you, with regard to Mr. Murray's allegations, that I am now satisfied … that no further investigations are warranted.That reinforces the view that we need to be sure whether those people are covered in this process. I hope that the Minister of State will clarify that.
This debate in Committee will continue a great deal longer and I hope that we do not end up with a guillotine. It is important that we use the time that the Government will provide, and that the Opposition want, to do what was not done with the official secrets legislation between 1889 and 1911 and on to 1920. It was always shoved through late at night because there was a scare. We must get it right this time. One of the most important points to clarify is which group of people will be notified that they are covered by this legislation.
§ Mr. Dalyell
Although I suspect that it would be in order, the case to which my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees) referred—that of the murdered Shrewsbury rose grower, Hilda Murrell—might be better dealt with in respect of a different amendment on another day, so I shall not pursue that.
However, my right hon. Friend will forgive me if I say that he raises a real problem of the authority of who is to say what is to be done in Cabinet. He referred to prime ministerial memoirs. I understand that, in the 1968–69 period of the Labour Cabinet, there was a lengthy discussion about the note-taking of Mrs. Castle, Mr. Jenkins and Mr. Crosland. The Prime Minister came up with the view that the party leader—the Prime Minister himself—should be able to read through the memoirs of Cabinet colleagues before they were published.
To illustrate the difficulty—Mr. Crosland told me that he said it, but others have claimed credit for doing so—they turned round in unison and said, "Harold, would you allow your memoirs to be vetted by Hugh Gaitskell?" That was the end of that argument. In no way would Harold Wilson have permitted his memoirs to be vetted by Hugh 1121 Gaitskell. [Interruption.] Hugh Gaitskell was certainly dead, but it was a hypothetical question. The answer, nevertheless, would have been a very big "nyet". I digress, but it encapsulates a real problem.
I am sure that the hon. Member for Aldridge-Brownhills (Mr. Shepherd) will agree that this is not the most momentous amendment, but for some of us it is something of a litmus test. If the Government were doing what many Opposition Members and some Conservative Members want, there would be little or no difficulty about accepting the wording suggested by the hon. Member for Aldridge-Brownhills.
Time is short, so I shall content myself with two questions on this amendment. The first was referred to by the hon. Member for Aldridge-Brownhills. What exactly is the position of the D notice committee? The Minister may say, "Don't worry about it; it's obvious." It is not obvious from the Bill. The position of the D notice committee is left in limbo by the wording of the Bill. In the same breath, I ask, what is the position of the Comptroller and Auditor General? My hon. Friend the Member for Workington (Mr. Campbell-Savours) is a member of the Public Accounts Committee. I, too, have served on that Committee. The role of the Comptroller and Auditor General is absolutely crucial, but, as I understand it, the wording of the Bill does not make that clear. If there can be clarification, let the Minister give it.
Secondly, the House of Commons is entitled to know that advice was given on this subject by the Security Commission. Were Lord Griffiths, General Sir Hugh Beach and Philip Allen invited to give advice? [Interruption.] My hon. Friend the Member for Birmingham, Erdington (Mr. Corbett) says no. He may be right. In that case, why were they not invited to give their advice? It is important to know what they think. They are people of considerable weight, and I want to know whether they gave advice on the subject. If the Government say that they cannot reveal whether such advice was given to them, at least it is legitimate to ask what the Security Commission said to Ministers.
§ Mr. Andrew F. Bennett
May I press the Minister on the point that was raised by the hon. Member for Hendon, North (Mr. Gorst): will this provision be retrospective? If people are told when they are appointed that they are subject to the provision, that is one thing. It is a very different thing if they are notified later that there will be retrospective notification, particularly if they have started to ask awkward questions.
The White Paper limits the scope of the Bill. Will the Minister give us some guidance about what will happen when defence contractors are involved in nuclear work, or in other high security work, and health and safety problems or problems over unfair dismissal arise? Does the Minister envisage that an absolute ban will be imposed if it becomes inconvenient for the Government when somebody raises a health and safety issue or complains about unfair dismissal? As the Bill is drafted, there is a temptation to brush aside awkward matters by suddenly slapping a notice on an individual. As I read the Bill, there is no limit on who can have a notice slapped on them if they appear to have information that might be embarrassing to the Government and that the Government can claim has security implications.
§ Ms. Abbott
In the run-up to the White Paper there was much talk about the possibility of the Bill containing ministerial certificates on information. There were extensive arguments in the media that ministerial certificates on information, whereby pieces of information would be designated, would open up the possibility of arbitrary behaviour by Ministers. Under clause 1 we will have ministerial certificates on people. The self-same arguments that were marshalled against ministerial certificates on information apply to ministerial certificates on individuals.
Will people have a right of appeal against designation? Subsections (6) and (7) deal with the procedure for effecting and revoking designation. Will a designated individual be able to petition for revocation, or will he have to wait until the Minister sees fit to revoke the designation?
The clause refers to persons being designated by virtue of being in possession of information. Ministers are technically in possession of a great deal of information which they never read. Would it be a defence for an ex-Minister to argue that, although he might have been in possession of information, he did not read it at the time? Ministerial certification of information has been argued against, but there are more problems when it is proposed for individuals. There are many grey areas which I hope the Minister will clear up.
§ Mr. Campbell-Savours
I can curtail my comments substantially if the Minister will intervene to give me an undertaking; otherwise, I shall have to proceed, perhaps at length, with the aid of an article in The Observer some eight months ago. Can the Minister tell us, in an intervention, whether a journalist could be subject to subsection (1)(b)? Could a journalist be "a person notified"?
§ Mr. Campbell-Savours
I shall move to the second point, the position of members of the Public Accounts Committee. During the course of our hearings when we take evidence we may examine defence officials on military equipment, in particular telecommunications equipment which has an intelligence connection. In other circumstances it might have been the Zircon project. Does the fact that I am a member of a Committee which might have to take evidence in private on a project similar to Zircon mean that I could be subject to notification under subsection (1) (b) and defined as "a person notified"?
§ Mr. Corbett
This is a fascinating debate. I hope that the Minister will reply particularly to the point about the D notice committee. For the sake of argument we will say that a designated person can be anyone the Secretary of State chooses. The power in the Bill to designate a person seems to make the D notice committee redundant, given the protections which the Government want to build into the legislation.
My hon. Friend the Member for Hackney, North and Stoke Newington (Ms. Abbott) raised the important question about an appeal or a petition against notification when a person has been designated. I would be interested to know whether the Minister will provide those avenues.
§ Mr. Heffer
I am a simple bloke and when I read the words "a person notified", I assumed that notification was not the same as designation. Perhaps we had better clear up what notification means because it can be a broad term. Designation means that one pinpoints a person or group, but what does notification mean? I do not know, and that is why I raised that question originally.
§ Mr. Corbett
I was using the word "designation" to mean the consequence of being notified, so the end result would be the same. My hon. Friend has raised an interesting point and, without becoming involved in a great semantic argument, perhaps the Minister will explain.
Our debate revolves around the question of who is a person or persons. We have little guidance on this. It is another example of the Home Secretary saying one thing in the White Paper, a second thing in the press release, a third thing at the beginning of the debate on the White Paper and, lo and behold, a fourth and contradictory thing when we come to debate the Bill.
§ Mr. Corbett
It would be progress if the right hon. Gentleman and his hon. Friends were to do that; I would welcome it.
Paragraph 45 of the White Paper, which follows on a discussion about the lifelong duty of confidentiality, says:Those issues have been discussed in terms of the 'security and intelligence services'.We all know where we are with that. It continues:But the arguments apply not only to actual members and former members of the services but also to those who work closely in support of or who are in frequent contact with the services, such as certain members of the armed forces who provide technical support for the services, or officials in specified posts in certain Departments who deal with the services on a regular basis as part of their normal duties.As has been asked already, does that apply to private security contractors? If it does, the Bill is far wider than was suggested in the White Paper, but the implication is that it does.
Let us imagine that the security in a certain building in Gower street has been privatised in pursuance of the Government's intention to privatise or shut everything in sight. Let us suppose that security there is handed over to Securicor, in which one of the Minister's hon. Friends has an interest, but that is by the by. Clearly, it would be nonsense, in view of the ambitions of clause 1, not to notify the members of that private security firm that they were being fingered under the provisions of the Bill.
We are also left with the point raised by my right hon. and learned Friend the Member for Warley, West (Mr. Archer) and other hon. Members about other people. What will be the position of Ministers? It is clear in the Bill that when a Minister is in office, he or she will be a notified or designated person. That is clear.
§ Mr. Heffer
It is not. The White Paper speaks about designation, whereas the Bill talks about notification. I left school at 14, but I know that there is a distinction between the two words. We should be clear about that because I do not trust people who draft proposals in a Bill differently from a White Paper unless we know what is meant and why the words have been changed.
§ Mr. Corbett
I am sorry to disappoint my hon. Friend, but I cannot help him, although I imagine that perhaps the Minister of State will be able to do so.
We have established that when in office a Minister is covered, and we assume from that that when the Minister leaves office, he or she will be sent a note saying that he or she is no longer a notified person. Suppose that someone was a Minister and either is or is not still a Member of this House that introduces other matters because we can always fall back on parliamentary privilege and the two things are possible. What happens if he is told by a member or former member of the security and intelligence services something that happened during his period as a Minister of which he was totally unaware then and which at the time was illegal? What can that person do? Can that person tell someone? No doubt the Minister of State will remind us that that person can go to the tribunal or to the police and he has said that they can, in safety, go to a solicitor but we question that.
More to the point, where there is some great iniquity and something illegal happened, can that person telephone Chapman Pincher and say, "Oi, Harry, have I got a story for you. Can you get it in the Daily Express tomorrow?" If that happens, who carries the can?
§ Mr. Corbett
I shall give way to my right hon. and learned Friend in just a moment.
We established in an earlier debate that the messenger will go to chokey—to gaol—and that the member or former member of the service who gave the information will go to gaol, but what about the editor who prints the information in those circumstances? What about the former Minister who passed on the information? Where does it stop?
§ Mr. Archer
Does my hon. Friend agree that it appears that no offence would have been committed in that instance because it will not be information in his possession in the course of his work while the notification was in force? If that relieves my hon. Friend's mind, is it not even odder that if it were something that he had learned while a Minister, he would have been covered, but if it is something that he learns accidentally later, or which slipped his memory but which he re-learns, apparently no offence has been committed?
§ Mr. Corbett
My right hon. and learned Friend has noticed a most interesting point. There is another flaw in the clause because, as my right hon. and learned Friend has said, it all hangs on the fact that the former Minister picked up the information in the course of his work while the notification is or was in force. That is an extremely apposite point.
Will the Minister of State say, "You have all been guessing that at some time after that person ceases to be a Minister, the notification will be revoked, but I have to tell you that it will not be revoked in the case of a former Minister because," lo and behold, "we are now going to extend the principle of the lifelong duty of confidentiality to anyone who has served as a Minister and been notified under the provisions."? That is possible under the Bill although I may be told that is wrong and although it could be perfectly logical to do that, I do not for a moment want it to happen.
1125 The Government cannot have it both ways, but they can try to have it both ways. One could generously say, "This is clearly a drafting fault and it is not the Government's intention to pin this narrowly on the words `while the notification is or was in force- and that the Government meant it to be wider to cover the problems that I have put to the Minister of State.
Although the White Paper widened the scope of what was proposed outside direct members of the security and intelligence services, it added comments about others who have frequent contact with members of the service. Will the Minister let the Committee know whether it is the Government's intention that notification would be applied only to those individuals and groups of people referred to in paragraph 45 of the White Paper? I anticipate that the answer will be no. I hope that the Minister will tell us. One reading of the Bill is that it could be applied to any person who has had any fairly regular contact with the security or intelligence services. I want to find out from the Minister how far it goes.
Do the Government intend to argue that an employee of a firm of contractors called in to refurbish the office of Mr. McColl, the new 56-year-old head of MI5, must be notified in the course of carrying out the work because of the likelihood, however remote, that they could trip across information that may put the state at risk? If that is so, do the Government believe that MI5 staff would be so careless as to leave classified or highly classified information lying around an office while it is being refurbished? I do not believe that. If that is flickering across the Minister's mind, he has a low opinion of senior personnel in the security and intelligence services.
Does the Minister envisage that there could be circumstances where Mr. McColl goes to the gents, happens to meet a colleague and begins to discuss some highly secret security officer while a contract plumber is changing a tap? How far do the Government intend to extend the list of persons whom they want to notify under the Bill? If one takes the Government's stand, it would be sensible to notify the plumber, painter, carpenter and electrician. because once they get inside buildings of that sort, given that the Government think that the staff are so careless as to flick secrets all over the place, who knows what they may find?
The Minister became excited the other night when he recalled that my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) had said:In truth since the war, MI5 has been one of the worst and most ridiculed security services in the western Alliance".—[Official Report, 15 December 1988; Vol. 143, c. 1124.]He said again tonight that that view is shameful. Based upon this clause, that seems to be the view of the Minister and the Government. The Government are seeking powers that it would be possible to extend to anyone with a brush or a hammer in their hands who gets anywhere near the security and intelligence services. They are saying that they must be gagged for life, presumably because it is the view of the Home Secretary and his colleagues that those in the services are casual and careless about what they do with secret papers or are indifferent about whether their discussions on such matters come within earshot of outsiders. We do not take that view.
We are still left with a conundrum: how far do the Government intend the notification to go? It may be 1126 argued that the Government want the power to stretch notification beyond those types of people mentioned in paragraph 45 of the White Paper.
Perhaps the Minister will turn his mind to people who have more regular contact with the security services than itinerant contractors refurbishing offices or painting buildings. What about the squads of cleaners who enter buildings at 5 am to get them shiny and in working order for when the spooks and spies arrive later in the day at more convenient hours to do their work? What happens. if the catering has been privatised? Catering staff would be in regular contact with members of the services. Is it intended to notify them? It appears that the Government can wrap this catch-all mantle around the neck of anyone they choose. That is unacceptable. It contrasts and collides dramatically and noisily with their claims that the Bill narrows the scope of official secrecy.
I hope the Minister will be able to satisfy me about these things; I await his reply with bated breath.
§ Mr. John Patten
I hope that I can satisfy the hon. Member for Birmingham, Erdington (Mr. Corbett) and my hon. Friends the Members for Thanet, South (Mr. Aitken) and for Aldridge-Brownhills (Mr. Shepherd). The debate gives me the chance to clear up some misconceptions about notification generally. I shall deal with specific questions when appropriate, but many of the questions asked have been general.
The amendments would place a restriction on a power that is already strictly limited. I will tell the Committee the exact limitations on the power in the Bill. The amendments would mean that certain people who work with the security and intelligence services, and who do not fall within the definitions of Crown servant or Government contractor as set out in the Bill, could not be placed under the same liability as members of the services, although they have very much the same knowledge as those members.
I want to impress on the Committee how limited this power is. The occasional fanciful story has appeared in the press, although one can sometimes believe what one reads there. The hon. Member for Workington (Mr. Campbell-Savours) and one or two other hon. Members have asked about the power to notify journalists, Members of this House, or anyone else. The criteria in the relevant subsection are clear and narrow.
First, a person cannot be notified unless his work is connected with the security and intelligence services. That does not mean a person with an interest in them—an interest which a writer, journalist or broadcaster might quite properly have. It is not enough to be professionally interested in the services—there must be some direct connection. This means that Ministers can notify only those who have some official standing in relation to the security services. There is no power to notify those who work as journalists, or as Members of this House, or as anything else, if they do not have that standing.
Secondly, the nature of the person's work must also be of such a kind that the interests of national security require that he be subject to the same offence as members of the services. The word "require" is deliberately chosen. It means that a Minister has no power to notify someone merely because he considers it desirable or convenient to notify him. In other words, national security interests must mean that notification is applied.
§ Mr. Richard Shepherd
I am grateful for that clarification. I should like to know what are the relevant lines and clauses of the Bill to which my hon. Friend is referring so that I may be assured of this.
§ Mr. Patten
Clause 1 sets out those people who can be notified, and we see here the notification powers set out in clause 1 to which I referred. In subsection (6) we shall see what applies.
§ Mr. Dalyell
Clause 1(6) says that a person may be notified if,in the Minister's opinion, the work … is or includes work connected with the security and intelligence services … and the interests of national security requirean absolute bar on disclosure. What safeguard, if any, exists to ensure that notification is not abused to cover situations quite outside the examples cited—that is, to notify someone whose job has made him or her a witness to an incident involving the security services? The Gibraltar example springs to mind.
Is the test that it is the Minister's opinion that the work is connected with the services? And is the Minister's opinion subject to judicial review if unreasonably exercised? Should there not be some form of appeal against abuse? Otherwise persons who are notified cannot mention the fact to anyone without consulting and creating an offence.
The Minister cannot complain about arbitrary notification without committing the absolute offence to which he has been made the subject.
§ Mr. Patten
The hon. Member has made a number of points. In answer to one: no, the matter is not open to judicial review. But in answer to the point raised by both the hon. Member for Linlithgow (Mr. Dalyell) and my hon. Friend the Member for Aldridge-Brownhills, we can see the protections in clause 1(6), becausethe work undertaken by the person in question is or includes work connected with the security and intelligence services"—
§ Mr. Patten
Indeed, in the Minister's opinion, if the Minister's opinion is that the nature of the work is such that considerations of security require that he be subject to the provisions of that subsection. The word "require" is deliberate.
§ Mr. Campbell-Savours
The intervention of the hon. Member for Aldridge-Brownhills (Mr. Shepherd) was important. He stressed the words "in the Minister's opinion". The Minister's opinion may change. It may be that the interpretation placed on the wordsor includes work connected with the security … servicesmay change from the relationship outlined by the Minister, which included only a professional relationship, to another kind of relationship which could perhaps include journalists. How can we be sure that the Minister's opinion might not change in the way that I am suggesting?
§ Mr. Patten
Looking at the words on the page, I do not understand how the Minister's opinion could be construed as involving the notification of someone who happens to have an interest, passing or permanent, in the work of the security services. The work must be undertaken by the person in question and must involve or include work in connection with the security services. That is a point that I have made on three occasions.
1128 Perhaps some of these points would become clearer if I gave some illustrations to the Committee of the sorts of people who would be notified.
§ Mr. Shepherd
This is the whole point of our emphasis on the words "in the Minister's opinion". In my introduction we cited the different views that have been passed by my right hon. Friend the Home Secretary and my hon. Friend the Minister of State himself—the view that they were essentially Crown servants. That is why we tried to limit it to that restriction so that there would be no confusion. Now we have another "in my view" which is justifying a wider clause. That is our anxiety—that large sections could be designated on the Minister's understanding, with no appeal or ability to argue that the wrong person has been notified.
§ Mr. Patten
In the end, notification—and the power of notification—is an operational decision and would always be an operational decision.
§ Mr. Patten
Yes, without judicial review. I have already said that twice to the Committee.
I think that my hon. Friend's anxiety and that of Opposition Members might be satisfied if I outlined to the Committee the sort of people who might be notified.
§ Sir Barney Hayhoe (Brentford and Isleworth)
What happens if the Minister makes a mistake? My hon. Friend seems to be arguing that Ministers are infallible. There must be a new breed of Ministers known only to the Home Office if that is his argument. If a Minister makes a mistake, who will review that decision if it is not available for judicial review?
§ Mr. Patten
Operational decisions on what should happen in the Security Service, including the power of notification for those who are closely connected with the service, must in the end be determined by ministerial decision. It is an operational decision by the Minister.
§ Mr. Patten
I hope that hon. Members will not intervene while I set out the types of people who will be notified. I wish to give the Committee as clear an indication as possible of how, on the basis of the present situation, the notification power will be used. I want to be helpful, but I cannot and will not reveal operational secrets. [Interruption.] I hope that hon. Members would not expect me to do so. It may be a matter of jocularity to some, but it is a serious issue to others, especially those in the service.
We propose to notify some carefully selected and mainly senior officials and members of the armed forces working in a few Government Departments because they are involved in assessing and deploying intelligence information of the greatest sensitivity and in assisting Ministers in the exercise of their responsibilities for the security and intelligence services.
We propose also to notify some, mainly Crown servants, who work on providing the services with regular professional support for their operations and activities. We will also notify those members of the armed forces who undertake technical communications and work alongside the services in various parts of the world. We also propose 1129 to notify those with particular responsibilities or public duties in respect of the services, including the Ministers. That answers the point that the right hon. Member for Morley and Leeds, South (Mr. Rees) raised.
It will be clear from what I have said that notification will not apply to the vast majority of people who are provided with information by the security and intelligence services as part of their work or who may be aware of particular aspects of the work of the services or who may from time to time give support and assistance to them. Of course, any unauthorised disclosures by such people will, for the first time, be subject to a test of harm.
§ Mr. Richard Shepherd
Part of the purpose of this debate was to identify those who might be notified. The amendment would leave out "a person" and inserta Crown servant or government contractor.We were trying to identify, outside that range, who else would be notified. It was designed to meet the classification or definition that Ministers had given. We thought we were being helpful.
§ Mr. Patten
I was coming to that point. I am going through the whole argument, from the beginning to the end of the story, in view of the concern that has been expressed on both sides of the Committee.
Among the small group with particular responsibilities or public duties in respect of the services, there are some people who, under this series of amendments, we would not be able to notify. They are holders of public offices which involve a detailed knowledge of the service. Such people must have a close and detailed knowledge of the workings of the security and intelligence services to discharge their functions. Furthermore, they stand in a position of trust, such as the chairman and members of the Security Commission. Furthermore, they stand in a considerable position of trust in society. We have no expectation that any of those eminent persons would ever break that trust, but, as a matter of principle and of consistency, I believe that their liability should be the same as that of members of the services. If my hon. Friend's amendments were put through, as the Bill stands now we could not notify such people.
Another important point was raised about notification.
§ Mr. Patten
I shall be coming to the right hon. and learned Gentleman's point in a moment, but I would like to make some progress. I have given way a great deal this evening. I would like to deploy the arguments to the Committee and then, as it is a Committee, hon. Members can return again and again to the debates if they wish.
An interesting linked point was made by the hon. Member for Hackney, North and Stoke Newington—an even longer title for a constituency than mine—about whether a person could actually refuse notification. I reassure the hon. Lady that every effort will be made to ensure that no civil servant is asked to fill, against his or her will, a post carrying notification. It is hardly in the public interest or in the interest of the efficiency of the Civil Service that a sensitive post should be held by a disaffected or discontented person.
§ Ms. Abbott
Could I ask two linked points? First, can a person appeal against notification? Secondly, as there is provision in this clause for revocation of notification, can a person petition for revocation or is it entirely at the whim of the Minister whether he chooses to do so?
§ Mr. Maclennan
In answer to the question of the hon. Member for Hackney, North and Stoke Newington (Ms. Abbott), the Minister said that a person would not be required to take a post carrying notification. If I have read the Bill correctly, it does not give the Minister powers to allow him to designate posts as notifiable posts. The Bill refers to the notification of individuals, and the Minister will be required to look at the position of individuals.
§ Mr. Patten
If anyone within the Civil Service is disatisfied, he has the well-laid-down lines of appeal right up to and including the head of the Civil Service.
The right hon. Member for Morley and Leeds, South mentioned the position of Ministers, which we need to consider. I assure the right hon. Gentleman that proper arrangements will be made within the Government to notify the relevant Ministers under the requirements of this provision, about which we foresee no difficulty.
§ Mr. Terence L. Higgins (Worthing)
Can we be clear on the question whether someone can refuse to be notified, as this would obviously have important implications if that person was already in possession of information? Can he simply say, "I refuse to be notified"? It would be difficult, if it were possible to notify someone after the event, to make the effect of the notification retrospective.
§ Mr. Patten
That person could not do that while he was in a position of some trust, where he had access to secret information. If, on the other hand, it was someone who was not a Crown servant who was being brought into notification, of course, he could refuse to be notified.
§ Mr. Higgins
Presumably, he could refuse to be notified and resign, or whatever the appropriate action might be.
§ Mr. Patten
Or that person could be transferred to another post or do something else. We all get faced with those rough decisions sometimes.
The right hon. Member for Morley and Leeds, South raised an important point about the time factor for Ministers, which I must answer. A former Minister who wished to reveal information about security and intelligence, given to him while he or she was a notified person—I must stress that there is no retrospective notification—would of course need to seek authority in the normal way, if he or she wished to make available that information.
§ Mr. Patten
I wonder if my hon. Friend would forgive me, because I must answer other points which have been raised in the debate.
§ Mr. Patten
I shall give way in a moment. I shall just deal with the point raised by the hon. Member for Linlithgow, which is in many ways linked, because it deals with non-Crown servants. I can reassure the hon. Gentleman that the Security Commission is aware of our proposals. As he generously said, it would not be right for me to go into further detail on that issue.
§ Mr. Allason
Does the limitation on retrospective notification apply only to Ministers? Is it impossible to notify retrospectively civil servants and other Crown servants who would otherwise qualify?
§ Mr. Patten
My hon. Friend is right. Such notification would be impossible.
The existence of the D notice committee and its usefulness are not affected by the Bill. Having said that, I shall respond to the right hon. and learned Member for Warley, West (Mr. Archer) and the right hon. Member for Morley and Leeds, South on notification. Clause 1 refers to:A person who is or has been…notified.That is the force which makes it possible for someone to be notified by statute, and that is the period for which he is notified.
§ Mr. Patten
Clause 1 refers to:A person who is or has been…notified.Those words appear in the first lines of the Bill. I think that I have read that correctly. All the best novels contain the advice "Read on", and that is what the hon. Gentleman should do. I understand that the right hon. Member for Morley and Leeds, South accepts that the Bill deals with the issue that the hon. Member for Workington (Mr. Campbell-Savours) has raised.
My hon. Friend the Member for Hendon, North (Mr. Gorst) is concerned about the position of a Minister who retires and then discovers something heinous or awful and 1132 wishes to talk about it. My hon. Friend wishes to know whether the notification procedure will be a possibility retrospectively. The answer is no. A retired Minister will have to abide by the duty of silence over the period when he was in office and during which he gathered information. If he discovered something after his retirement, he would not be subject to retrospective notification.
§ Mr. Gorst
I am grateful to my hon. Friend the Minister for that answer, but I still have a nagging fear. Let us suppose that a Minister in office has not been a notified person and someone says, "You realise that Bloggs may find out about what happened three weeks ago, so we shall make him a notified person."
§ Mr. Patten
I do not think that retrospective notification is possible inside or outside of office. Retrospection is not possible, whether someone is in office or out of office, and not notification is permitted on a passerby.
I hope that the fuller explanation that I have given of the scope and intended use of the powers will reassure the Committee. I hope that on that basis there will be a preparedness to withdraw the amendments.
§ The First Deputy Chairman of Ways and Means (Sir Paul Dean)
Order. I think that the Minister has sat down.
§ Mr. Campbell-Savours
On a point of order, Sir Paul. The Minister said that he would respond to all the issues that were raised by my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees), but he has not referred to the sub-tier, about which the hon. Member for Thanet, South (Mr. Aitken) spoke, of those who work for the Security Service, but not directly.
§ Mr. Patten
Further to the point of order, Sir Paul. I think that the hon. Member for Workington (Mr. Campbell-Savours) has done me an injustice. When he reads Hansard, I think that he will find that I dealt with the "sub-tier" to which he has referred.
§ Mr. Archer
It is a late hour and I do not wish to delay the Committee for long.
The Minister has reminded us that we are discussing a serious matter; he rebuked some hon. Members for failing to treat it as such. He then said that it is an operational matter, and repeated that two or three times. I am not clear what follows from it being an operational matter, but criminal liability rests on those to whom the term applies. That is certainly a serious matter. Those notified will be people who, in the Minister's opinion, fall within the category of people liable to notification. It will not do for the Minister to say that the Bill has safeguards. He says that one has only to refer to subsection (6), which identifies who is liable for notification—but in the Minister's opinion. There is no appeal against the Minister's opinion, and there is no one to whom the Minister need refer.
The Minister was kind enough to give the Committee examples of the people he has in mind for notification, and of those who will not be notified. But we all have experience of legislation by undertaking. Again and again, legislation has been put on the statute book, and two or three years later, when a situation arises, it is said, "But an undertaking was given in the debate." There follows an argument about what was meant by that undertaking, who gave it, and in what circumstances. No one is in a position to adjudicate. Legislation by undertaking is unsatisfactory.
If the Bill's existing text enters the statute book, then if, in the Minister's opinion, someone is liable to notification, no one will be able to challenge his opinion. The amendments deal with that situation, and the Minister's answers are not enough.
§ Mr. Dalyell
The hour is late, and no one who has taken part in the debate can say that there has been any irrelevance. However, deep and increasing worry has been expressed about the substance of the ministerial replies. If I do the hon. Gentleman an injustice, he will tell me. Has he answered at any point in the last half-hour the question raised by my right hon. and learned Friend the Member for Warley, West (Mr. Archer)? How can a ministerial opinion that is thought to be unreasonable be challenged? To those of us who have been listening intently, it seems that there is, in the Minister's opinion, a blanket, cover-all phrase embracing anything that the Government of the day want. This is a serious matter of liberty and freedom. If I am wrong in my interpretation, the Minister will tell me. I fear that I am not.
§ Mr. Maclennan
I am, more than ever, mystified by the Minister's reply to the hon. Member for Aldridge-Brownhills (Mr. Shepherd). We have been trying to clarify the people who will be notified. The Minister says that it is all clearly set out in clause 1. Alas, it is not. The Minister referred to subsection (6), which states:such a notice may be served if, in the Minister's opinion, the work undertaken by the person in question is or includes work connected with the security and intelligence servicesand so on. Are those people an objective class of individuals, or are they people subjectively defined by any Minister, at any given time?
The Minister sought to illustrate his argument by citing the categories that he or his right hon. Friend the Secretary of State for the Home Department might have in mind as the subject of notification. But the Bill, as I read it, does 1134 not give the Minister power to designate categories of people. The power applies only to individuals. If the Minister is to exercise that power appropriately, I do not see how he can deal with the matter, even by reference to categories, without misleading the Committee.
If the Minister is of the opinion that the work of a tailor or dentist or someone in the Security Service is connected with the Security Service, it will be open to him so to decide.
§ Mr. Maclennan
The Home Secretary shakes his head. But who is to challenge the Home Secretary's judgment if there is disagreement that the Security Service man's tailor or dentist is not a suitable person to be notified? Such a power is open to gross abuse. The Committee must be given greater reassurance.
The amendment is extremely important, because in the Bill the Minister is taking powers to nominate individuals as being potentially guilty of an absolute offence if they disclose information. That is creating crime by fiat and is entirely unacceptable.
§ Mr. Campbell-Savours
I should like to dwell on a point that I raised earlier. The words "in the Minister's opinion" give him immense powers. He, as a Minister, might well make the right decisions having formed the right opinion, but the question is what might happen in changed political circumstances. At some stage in the future, his post might be occupied by someone with a very different view of what constitutes reasonable action. The Cabinet might be comprised of people holding such a view. They might say that a journalist or a member of a Select Committee should be notified. [Laughter.] The Minister may laugh, but these are serious matters. Under the Bill, any Member of the House might—depending on what parliamentary Committees he sits on—find himself a notified person. It all depends on the opinion of the Minister.
The Minister should take on board the reservations that have been expressed about the wording, and perhaps table an amendment on Report. The Government might provide for a form of judicial review, or perhaps some other alternative; but it must not be left to a Minister, however reasonable and liberal he may be today, to make such decisions for all time. Others who came after him might take a very different view.
The hon. Member for Thanet, South (Mr. Aitken) asked the Minister about the sub-tier of people whose work may be connected with the security services. That was also referred to by my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees). The hon. Gentleman maintained that the companies concerned, often private companies, were in a special position, being privy to information that might well bear some protection.
In the programme "After Dark", Mr. Gary Murray identified the firm KMS. In a letter to my right hon. Friend, of which I have a copy, the Home Secretary himself referred to the work carried out for the Government by that firm—work involving the protection of people from other countries while they are in the United Kingdom, and the protection of embassies in London. Employees of KMS may well be in contact with people in the security services, and on occasions required to work with them. They may therefore gain knowledge of a sensitive nature, in the view of the Minister. Can those persons be notified under clause 1(1)(b)?
1135 The Minister said earlier that he had answered that question. I asked my right hon. Friend the Member for Morley and Leeds, South, who said that he had not heard the answer. I asked the hon. Members for Thanet, South and for Torbay (Mr. Allason); they had not heard the answer either. May we now have the answer to that simple question?
§ Mr. Jeff Rooker (Birmingham, Perry Barr)
I came to listen and not to speak, but I want to put three short questions to the Minister. He will have to return to the Dispatch Box simply to clear up many misunderstandings. He did not satisfactorily answer the question about retrospective operation. Is he resting that on the word "is" in line 15 and the word "its" in line 16 of clause 1? The tense of the words is the only ground for retrospective action. That seems a weak argument, and if the matter is dealt with in some other part of the Bill he should draw that to the attention of the Committee.
My next point is crucial and was raised by the hon. Member for Aldridge-Brownhills (Mr. Shepherd). This is a serious and probing amendment. We seek from the Minister the groups or classifications of people other than Crown servants and Government contractors who could be covered. The Minister gave no example other than the Security Commission. All the people in the list that he read were covered in one way or another by clause 12.
I should like to press the Minister on another matter raised by the hon. Member for Aldridge-Brownhills. Will the person responsible for auditing the books and looking at the accounts of the intelligence services be dedicated to security? The Minister may argue that such work is not closely related to national security, which is the interest of the state. Clause 12 defines the state as the Government. Such a definition could be used to cover up embarrassments that have nothing to do with what we understand to mean national security and the interests of the state. It may be used to save embarrassing the Government. Of course, clause 12 says that the state includes things other than the Government.
Will the Minister answer the question asked by the hon. Member for Aldridge-Brownhills about whether those responsible for auditing the books would be notified? It is a specific question, and it is clearly legitimate to ask it. For the life of me, I cannot understand why the Minister could not bring himself to go wider than he did and give examples of people other than members of the Security Commission. He should have included people who audit the books.
§ Mr. Corbett
I am sorry to speak again because I know that it is late, but these are extremely important matters and we should do our best to put them right. I do not know what to make of the Minister's list of persons who are 1136 likely to be notified. As my hon. Friend the Member for Birmingham, Perry Barr (Mr. Rooker) said, the Minister did no more than take us at a canter through clause 12 when he talked about senior, carefully selected members of the armed forces, people—mainly civil servants—providing professional support and holders of public office.
The Minister then used a rather curious phrase that does not appear in the Bill. Paragraph 48 of the White Paper makes it clear that, when the Bill reaches the statute book, no one will be able to find out who has or has not been notified, but there is no provision in the Bill for that to be done. The Minister referred to people in positions of trust and went on to mention members of the Security Commission. If the Minister intends to extend the provision and to include, as would be proper following the Government's logic, people holding positions of trust in these sensitive areas, why is that not in the Bill? Will he now consider including it in the Bill?
I am sure that the Minister did not want to speed up the proceedings and thus fail to answer questions put to him quite legitimately, but what am I to make of his silence about those classes of contractors who are employed from time to time to do specified jobs over specified periods in the offices or premises of the security or intelligence services? Am I to take it that they would not be subject to notification in any circumstances?
§ Mr. Corbett
The Minister shakes his head. I hope that, when he looks at Hansard, he means that. Perhaps he will put me right on this. Is the Minister saying that, if a fairly lengthy contract for major refurbishment of an MI5 building were involved, necessitating 12 or 18 months' work, none of those contractors would be notified, or can private contractors called in for such work be made temporary Crown servants?
I hope that the Minister will reconsider this matter. Hon. Members are worried that it is left solely to the Minister's whim and discretion and, as he has confirmed tonight, it is not even subject to the expensive and rather lengthy process of judicial review.
§ Sir Barney Hayhoe
When my hon. Friend the Minister gave way to me a moment ago, I asked him a simple, straightforward question. What happens if a Minister makes a mistake in notifying an individual or individuals? What redress of grievance is available? The House is concerned with the redress of individual's grievances. What redress of grievance is available to an individual who has been wrongly notified? That is a straightforward question, and I hope that the Minister will give us an answer.
§ Sir Barney Hayhoe
I must still ask what happens if a mistake is made. Is my hon. Friend the Minister saying that the individual who has been wrongly notified has to lump it? Is that what he is saying to persuade the House to vote in favour of this proposition, that the individual with a genuine grievance has to lump it and that the Committee is being asked to legislate to the effect that there is no redress of grievance for that individual?
There is surely no need, as a matter of order, for me to give way to the Minister. We are in Committee and surely 1137 all of us, including the Minister, can intervene in the debate as many times as we wish. This is an important enough issue for me to ask the Minister to give a clear answer to what I believe is a clear and straightforward question.
§ Mr. Dalyell
The Minister obviously does not intend to reply to the questions he has been asked by his hon. Friends or to give answers to a number of other legitimate questions. Some of us believe, in all seriousness—I do not use the word frivolously—that that is an insult to the Committee. To those hon. Members who have just entered the Chamber I say that until now the Minister has been rather good about giving way. He has been courteous to the Committee. These are crucial questions; they are not debating points.
I ask the Minister yet again a question that has been asked in several forms by several Members on both sides of the Committee: how can an unreasonable ministerial opinion he challenged? That is an important question. Will either a mistake or an unreasonable ministerial opinion be open to challenge? The Minister sits firmly in his place. He may have been given instructions by the Chief Whip to do so, but after all that has taken place today I think that that is extremely poor behaviour.
§ Mr. Corbett
The Minister's decision not to reply to these questions is absolutely unacceptable. You will have seen, Sir Paul—as has every other hon. Member—the Chief Whip sitting beside the Minister on the Treasury Bench and saying certain words to him. I also saw the Home Secretary, on one of his rare visits during the debate on these amendments, appear—I put it no stronger than that—to encourage the Minister of State to keep what he said to the absolute minimum. I am all in favour of keeping what is said to the absolute minimum, but in this case the Committee is being treated with contempt. Legitimate questions have been put to the Minister by hon. Members on both sides of the Committee.
If, at the behest of some of his hon. Friends who are trying to twist his arm, the Minister intends to deal with legitimate questions in that way, the Committee will have to sit far longer than it needs. If the proceedings go on for a long time, that does not mean that a great deal of ground has been covered. I repeat that legitimate questions were put to the Minister with which he did not deal. It is not good enough for him to leave them unanswered. The Committee will not accept it.
§ Mr. John Patten
All these fine words, arguments and verbal threats by the hon. Member for Birmingham, Erdington (Mr. Corbett) are based on the belief that no further reply would be given. I have been here happily since 4.30 pm, I have given way on many occasions and I have tried to be courteous to the Committee. I seek always to answer all the questions that I can. I do not take amiss the strictures of the hon. Member for Linlithgow (Mr. Dalyell), which I presumed were designed to trap me into getting to my feet. I assure him that his strictures were unnecessary.
Ministerial decisions would be judicially reviewable. The normal principles of judicial review would apply. A person could argue that he was not properly covered by the criteria in subsection (6) of clause 1 and that therefore he should not have been notified. That would make the decision judicially reviewable.
§ Mr. Corbett
Can the Minister confirm that traditionally the courts will not interfere in matters that involve national security? Is that not the case?
§ Mr. Patten
The courts will take their own view on these issues.
There is also the important issue raised by my right hon. Friend the Member for Brentford and Isleworth (Sir B. Hayhoe)—
§ Mr. Patten
I am about to deal with mistaken notification. Then I will give way to the right hon. and learned Gentleman. I have given way to him on many occasions. It has been a pleasure of mine since he gave me my first tutorials in "teach yourself criminal law" during the proceedings on the Criminal Justice Bill last year.
If the notified person thinks that a mistake has been made—I think I made the point before in two interventions—he can take it up through the normal channels. The Minister can consider his representations and, if necessary, revoke the notification. The representations should go through the usual channels, which can include the head of the department. I hope that I have satisfied the Committee on those two points.
§ Mr. Archer
One does not want to prolong this discussion indefinitely, but the Minister, virtually at the last moment, has changed the case he was making and has said that the matter is subject to judicial review. Judicial review is not a form of appeal. A person cannot go to the court and say, "Do you disagree with what the Minister says?" The Minister has to give a reason for saying that the person falls within the criteria. Unless that has happened, I do not see how we even begin to get judicial review on its feet. What the court is being asked to do is to look at the Minister's reasons and to say whether it thinks there is something wrong with the reasons. But the Minister does not have to give reasons. I will not take it further now, but at some stage the Minister will have to do better.
§ Mr. Richard Shepherd
When I moved the amendment I thought that my hon. Friend the Minister could give a simple explanation. I wanted to find out the sorts of individuals who would be notified outside the remit of Crown servants, et cetera. The debate has taken a long time and at the last moment my hon. Friend the Minister of State has notified us that there could be some form of judicial review, a point on which he was not able to advise us during the last hour or so.
§ Mr. Shepherd
My nervousness has increased during the debate because of the extraordinary language that the Minister has dredged up. We now have ordinary judicial review, presumably as opposed to extraordinary judicial review. Last week on the Security Service Bill we had an important clause which tried to take out of any form of judicial review the work of the tribunal. This is close to the work of the security services. The same sort of individuals will be involved and those who come into contact with them will be notified. On the one hand, we will be able to have a review; on the other, we will not. I am lost.
I no longer have confidence. I am sorry to say that at this late hour. The Minister understands the Bill that he is piloting through the House. A series of questions were asked legitimately. We wanted an example of the sort of 1139 individual who might be notified. The only example he gave was a member of the Security Commission. There must be a better answer. I am not satisfied, and I propose to force a vote on the amendment.
§ Question put, That the amendment be made:—
§ The Committee divided: Ayes 197: Noes 246.1142
|Division No. 52]||[11.28 pm|
|Abbott, Ms Diane||Galbraith, Sam|
|Aitken, Jonathan||Galloway, George|
|Allason, Rupert||Garrett, John (Norwich South)|
|Allen, Graham||Garrett, Ted (Wallsend)|
|Anderson, Donald||George, Bruce|
|Archer, Rt Hon Peter||Gilbert, Rt Hon Dr John|
|Armstrong, Hilary||Godman, Dr Norman A.|
|Ashdown, Rt Hon Paddy||Golding, Mrs Llin|
|Ashton, Joe||Gordon, Mildred|
|Barnes, Harry (Derbyshire NE)||Gould, Bryan|
|Beckett, Margaret||Graham, Thomas|
|Beith, A. J.||Grant, Bernie (Tottenham)|
|Benn, Rt Hon Tony||Griffiths, Nigel (Edinburgh S)|
|Bennett, A. F. (D'nt'n & R'dish)||Griffiths, Win (Bridgend)|
|Bermingham, Gerald||Grocott, Bruce|
|Bidwell, Sydney||Hardy, Peter|
|Blunkett, David||Harman, Ms Harriet|
|Boateng, Paul||Hattersley, Rt Hon Roy|
|Body, Sir Richard||Haynes, Frank|
|Boyes, Roland||Healey, Rt Hon Denis|
|Bray, Dr Jeremy||Heffer, Eric S.|
|Brown, Nicholas (Newcastle E)||Henderson, Doug|
|Buchan, Norman||Hinchliffe, David|
|Buckley, George J.||Hogg, N. (C'nauld & Kilsyth)|
|Caborn, Richard||Holland, Stuart|
|Callaghan, Jim||Home Robertson, John|
|Campbell, Menzies (Fife NE)||Hood, Jimmy|
|Campbell, Ron (Blyth Valley)||Howarth, George (Knowsley N)|
|Campbell-Savours, D. N.||Howells, Geraint|
|Canavan, Dennis||Hughes, John (Coventry NE)|
|Clark, Dr David (S Shields)||Hughes, Roy (Newport E)|
|Clay, Bob||Illsley, Eric|
|Clelland, David||Ingram, Adam|
|Clwyd, Mrs Ann||Janner, Greville|
|Cohen, Harry||Jones, Barry (Alyn & Deeside)|
|Coleman, Donald||Jones, Martyn (Clwyd S W)|
|Cook, Robin (Livingston)||Kaufman, Rt Hon Gerald|
|Corbett, Robin||Kennedy, Charles|
|Cousins, Jim||Kirkwood, Archy|
|Cox, Tom||Lambie, David|
|Cryer, Bob||Leadbitter, Ted|
|Cummings, John||Leighton, Ron|
|Cunliffe, Lawrence||Lestor, Joan (Eccles)|
|Cunningham, Dr John||Lewis, Terry|
|Dalyell, Tam||Livsey, Richard|
|Darling, Alistair||Lloyd, Tony (Stratford)|
|Davies, Rt Hon Denzil (Llanelli)||Lofthouse, Geoffrey|
|Davies, Ron (Caerphilly)||Loyden, Eddie|
|Davis, Terry (B'ham Hodge H'l)||McAvoy, Thomas|
|Dewar, Donald||Macdonald, Calum A.|
|Dixon, Don||McFall, John|
|Dobson, Frank||McKay, Allen (Barnsley West)|
|Doran, Frank||McLeish, Henry|
|Douglas, Dick||Maclennan, Robert|
|Dunnachie, Jimmy||McNamara, Kevin|
|Eastham, Ken||McTaggart, Bob|
|Ewing, Harry (Falkirk E)||McWilliam, John|
|Fatchett, Derek||Madden, Max|
|Fearn, Ronald||Mahon, Mrs Alice|
|Fields, Terry (L'pool B G'n)||Marek, Dr John|
|Fisher, Mark||Marshall, David (Shettleston)|
|Flannery, Martin||Marshall, Jim (Leicester S)|
|Foot, Rt Hon Michael||Martlew, Eric|
|Foster, Derek||Maxton, John|
|Foulkes, George||Meacher, Michael|
|Fraser, John||Meale, Alan|
|Fyfe, Maria||Michael, Alun|
|Michie, Bill (Sheffield Heeley)||Sheldon, Rt Hon Robert|
|Mitchell, Austin (G't Grimsby)||Shepherd, Richard (Aldridge)|
|Morgan, Rhodri||Shore, Rt Hon Peter|
|Morley, Elliott||Short, Clare|
|Morris, Rt Hon A. (Wshawe)||Skinner, Dennis|
|Mowlam, Marjorie||Smith, Andrew (Oxford E)|
|Mullin, Chris||Smith, C. (Isl'ton & F'bury)|
|Murphy, Paul||Soley, Clive|
|Nellist, Dave||Spearing, Nigel|
|Oakes, Rt Hon Gordon||Steel, Rt Hon David|
|O'Brien, William||Strang, Gavin|
|Orme, Rt Hon Stanley||Straw, Jack|
|Owen, Rt Hon Dr David||Taylor, Matthew (Truro)|
|Parry, Robert||Taylor, Teddy (S'end E)|
|Pendry, Tom||Turner, Dennis|
|Pike, Peter L.||Vaz, Keith|
|Powell, Ray (Ogmore)||Wall, Pat|
|Primarolo, Dawn||Wallace, James|
|Quin, Ms Joyce||Wai ley, Joan|
|Radice, Giles||Wardell, Gareth (Gower)|
|Randall, Stuart||Welsh, Andrew (Angus E)|
|Redmond, Martin||Welsh, Michael (Doncaster N)|
|Rees, Rt Hon Merlyn||Williams, Rt Hon Alan|
|Reid, Dr John||Williams, Alan W. (Carm'then)|
|Richardson, Jo||Wilson, Brian|
|Roberts, Allan (Bootle)||Winnick, David|
|Robertson, George||Wise, Mrs Audrey|
|Rooker, Jeff||Worth ington, Tony|
|Ross, Ernie (Dundee W)||Wray, Jimmy|
|Ruddock, Joan||Tellers for the Ayes:|
|Salmond, Alex||Mr. Frank Cook and|
|Sedgemore, Brian||Mr. Robert N. Wareing.|
|Adley, Robert||Carttiss, Michael|
|Alexander, Richard||Cash, William|
|Alison, Rt Hon Michael||Chapman, Sydney|
|Amess, David||Chope, Christopher|
|Amos, Alan||Churchill, Mr|
|Arbuthnot, James||Clark, Hon Alan (Plym'th S'n)|
|Arnold, Jacques (Gravesham)||Clark, Dr Michael (Rochford)|
|Ashby, David||Clark, Sir W. (Croydon S)|
|Aspinwall, Jack||Clarke, Rt Hon K. (Rushclitfe)|
|Atkins, Robert||Colvin, Michael|
|Atkinson, David||Conway, Derek|
|Baker, Nicholas (Dorset N)||Coombs, Anthony (Wyre F'rest)|
|Baldry, Tony||Coombs, Simon (Swindon)|
|Batiste, Spencer||Cope, Rt Hon John|
|Beggs, Roy||Cran, James|
|Bendall, Vivian||Curry, David|
|Bennett, Nicholas (Pembroke)||Davies, Q. (Stamf'd & Spald'g)|
|Bevan, David Gilroy||Devlin, Tim|
|Biffen, Rt Hon John||Dickens, Geoffrey|
|Blackburn, Dr John G.||Dorrell, Stephen|
|Blaker, Rt Hon Sir Peter||Douglas-Hamilton, Lord James|
|Bonsor, Sir Nicholas||Dunn, Bob|
|Boscawen, Hon Robert||Durant, Tony|
|Boswell, Tim||Dykes, Hugh|
|Bottomley, Peter||Eggar, Tim|
|Bowden, A (Brighton K'pto'n)||Emery, Sir Peter|
|Bowden, Gerald (Dulwich)||Evennert, David|
|Bowis, John||Fallon, Michael|
|Boyson, Rt Hon Dr Sir Rhodes||Favell, Tony|
|Braine, Rt Hon Sir Bernard||Fenner, Dame Peggy|
|Brandon-Bravo, Martin||Field, Barry (Isle of Wight)|
|Brazier, Julian||Forman, Nigel|
|Bright, Graham||Forsyth, Michael (Stirling)|
|Brown, Michael (Brigg & Cl't's)||Forsythe, Clifford (Antrim S)|
|Bruce, Ian (Dorset South)||Forth, Eric|
|Buck, Sir Antony||Franks, Cecil|
|Budgen, Nicholas||Freeman, Roger|
|Burns, Simon||Fry, Peter|
|Burt, Alistair||Gale, Roger|
|Butcher, John||Gardiner, George|
|Butler, Chris||Garel-Jones, Tristan|
|Butterfill, John||Gill, Christopher|
|Carlisle, John, (Luton N)||Goodhart, Sir Philip|
|Carrington, Matthew||Goodson-Wickes, Dr Charles|
|Gow, Ian||Kellett-Bowman, Dame Elaine|
|Gower, Sir Raymond||Key, Robert|
|Grant, Sir Anthony (CambsSW)||King, Roger (B'ham N'thfield)|
|Greenway, Harry (Ealing N)||King, Rt Hon Tom (Bridgwater)|
|Greenway, John (Ryedale)||Knight, Greg (Derby North)|
|Gregory, Conal||Knight, Dame Jill (Edgbaston)|
|Griffiths, Peter (Portsmouth N)||Knowles, Michael|
|Grist, Ian||Lennox-Boyd, Hon Mark|
|Grylls, Michael||Lightbown, David|
|Hamilton, Hon Archie (Epsom)||Lilley, Peter|
|Hamilton, Neil (Tatton)||Lloyd, Sir Ian (Havant)|
|Hanley, Jeremy||Maclean, David|
|Hannam, John||McLoughlin, Patrick|
|Hargreaves, A. (B'ham H'll Gr')||Mans, Keith|
|Hargreaves, Ken (Hyndburn)||Maples, John|
|Harris, David||Maude, Hon Francis|
|Haselhurst, Alan||Meyer, Sir Anthony|
|Hayward, Robert||Miller, Sir Hal|
|Heathcoat-Amory, David||Mills, Iain|
|Heddle, John||Miscampbell, Norman|
|Hicks, Mrs Maureen (Wolv' NE)||Mitchell, Andrew (Gedling)|
|Hicks, Robert (Cornwall SE)||Mitchell, Sir David|
|Higgins, Rt Hon Terence L.||Moate, Roger|
|Hill, James||Molyneaux, Rt Hon James|
|Hind, Kenneth||Monro, Sir Hector|
|Hogg, Hon Douglas (Gr'th'm)||Morris, M (N'hampton S)|
|Holt, Richard||Morrison, Rt Hon P (Chester)|
|Hordern, Sir Peter||Moss, Malcolm|
|Howard, Michael||Neale, Gerrard|
|Howarth, Alan (Strat'd-on-A)||Nelson, Anthony|
|Howarth, G. (Cannock & B'wd)||Neubert, Michael|
|Howell, Ralph (North Norfolk)||Nicholls, Patrick|
|Hughes, Robert G. (Harrow W)||Nicholson, David (Taunton)|
|Hunt, David (Wirral W)||Nicholson, Emma (Devon West)|
|Hunt, John (Ravensbourne)||Norris, Steve|
|Hunter, Andrew||Onslow, Rt Hon Cranley|
|Hurd, Rt Hon Douglas||Oppenheim, Phillip|
|Irvine, Michael||Page, Richard|
|Jack, Michael||Paice, James|
|Jackson, Robert||Patten, Chris (Bath)|
|Janman, Tim||Patten, John (Oxford W)|
|Jessel, Toby||Pawsey, James|
|Jones, Gwilym (Cardiff N)||Peacock, Mrs Elizabeth|
|Jones, Robert B (Herts W)||Porter, David (Waveney)|
|Portillo, Michael||Stewart, Allan (Eastwood)|
|Powell, William (Corby)||Stewart, Andy (Sherwood)|
|Price, Sir David||Stokes, Sir John|
|Raffan, Keith||Stradling Thomas, Sir John|
|Raison, Rt Hon Timothy||Summerson, Hugo|
|Rathbone, Tim||Taylor, Ian (Esher)|
|Redwood, John||Taylor, John M (Solihull)|
|Renton, Tim||Temple-Morris, Peter|
|Rhodes James, Robert||Thompson, Patrick (Norwich N)|
|Riddick, Graham||Thorne, Neil|
|Ridley, Rt Hon Nicholas||Thumham, Peter|
|Roberts, Wyn (Conwy)||Townend, John (Bridlington)|
|Roe, Mrs Marion||Tracey, Richard|
|Ross, William (Londonderry E)||Trippier, David|
|Rossi, Sir Hugh||Trotter, Neville|
|Rowe, Andrew||Twinn, Dr Ian|
|Sainsbury, Hon Tim||Vaughan, Sir Gerard|
|Sayeed, Jonathan||Viggers, Peter|
|Shaw, David (Dover)||Waddington, Rt Hon David|
|Shaw, Sir Giles (Pudsey)||Walker, Bill (T'side North)|
|Shaw, Sir Michael (Scarb')||Waller, Gary|
|Shelton, Sir William||Ward, John|
|(Streatham)||Wardle, Charles (Bexhill)|
|Shephard, Mrs G. (Norfolk SW)||Watts, John|
|Shepherd, Colin (Hereford)||Wells, Bowen|
|Shersby, Michael||Wheeler, John|
|Sims, Roger||Whitney, Ray|
|Smith, Sir Dudley (Warwick)||Widdecombe, Ann|
|Smith, Tim (Beaconsfield)||Wilkinson, John|
|Soames, Hon Nicholas||Wilshire, David|
|Speed, Keith||Wood, Timothy|
|Spicer, Michael (S Worcs)||Yeo, Tim|
|Squire, Robin||Young, Sir George (Acton)|
|Stanley, Rt Hon Sir John||Tellers for the Noes:|
|Steen, Anthony||Mr. Kenneth Carlisle and|
|Stern, Michael||Mr. Tom Sackville.|
§ Question accordingly negatived.
§ To report Progress and ask leave to sit again.—[Mr. Maclean.]
§ Committee report Progress; to sit again tomorrow.