DEFENCE (Hansard, 2 May 1989)

§ Mr. John Patten
I beg to move, That this House doth agree with the Lords in the said amendment.

§ Mr. Deputy Speaker
With this it will be convenient to discuss Lords amendment No. 4.

§ Mr. Patten
The amendments replace the word "jeopardises" in the international relations harm test in clauses 2 and 3 with the word "endangers". The amendments respond to the suggestion in the other place that "endangers" might be clearer to juries than "jeopardises". The Opposition parties in another place fully supported that suggestion and the names of members of those parties appeared on the Order Paper with that of my right hon. and noble Friend the Minister of State in support. That was a welcome touch of unanimity in our consideration of the Bill.

§ Mr. Teddy Taylor (Southend, East)
I am sure that the Minister will accept that the amendments are significant. They strengthen the basis on which we could regard something as damaging. It is interesting that they affect almost every clause in the Bill, except one. That is significant and important.
Clause 2 contains the word jeopardises, which will be affected by the amendments. In clause 3(2) the word jeopardises is replaced by endangers. Clause 5(3) contains the words "the disclosure … is damaging" and, in that connection, damaging is defined closely as something which endangers. Clause 6 relates to international relations and clause 6(4) uses the word "damaging." In all those instances we are replacing the word jeopardises with something which seems more precise and more limiting, namely, damaging.
In relation to clause 6, how on earth is it possible to decide whether a disclosure is damaging to international relations?

§ Mr. Deputy Speaker
Order. It would not be in order for the Minister to respond to that question. We are debating the amendments to clauses 2 and 3.

§ Mr. Taylor
Yes, but a study of the Bill shows that one is referred back to those clauses for a definition of the word damaging as it appears in clause 6(4). That clause says: damaging shall be determined as it would be in relation to a disclosure of the information, document or article in question by a Crown servant in contravention of section 1(3), 2(1) and 3(1)". In other words, the clauses are covered by the amendments. In those circumstances it is fair to say that if we accept the amendment it has a specific consequence on clause 6(4). I am not trying to bring in new material. I am simply trying to show that the amendment affects clause 6(4), which refers back to the definition of damaging given earlier in the Bill.
If we accept the amendment, and thereby have a consequential change in relation to the word "damaging" in clause 6(4), how will that affect any consideration of damage in Britain's relations with an international body, and particularly in our relations with the EEC, bearing in mind that Mr. Jacques Delors, the president of the 146 Commission, has said that before long about four fifths of all legislation affecting the House of Commons will go through the Council of Ministers procedure?
I am not asking a silly question. It is vital that those who are engaged in EEC work should have an idea of the tests that will apply if there is any disclosure. How will it endanger the country's interests as opposed to jeopardising those interests? Do the Government regard this as a significant change? May we be told of the categories of information to which this will apply?
Will the amendment have a bearing on clause 4? Although it appears to affect all the other clauses in the measure, it seems not to concern clause 4. If so, does the Minister consider that to be reasonable? Clause 4 deals with the consequences of what will happen if anybody reveals information which results in the commission of an offence". That has wide scope because it relates to any Crown servant or government contractor who discloses … information … to which this section applies and which … results in the commission of an offence". Am I right in thinking that the amendment will apply to all the other clauses but will not sharpen up the definition in clause 4? I ask that because discussions are taking place now about the controversial issue of the revelation of information in reports of inspectors who have been looking into a company merger. We also have the possibility of an inspection by what is called the serious fraud squad. Bearing in mind the need to protect the community, it would be sad if we sharpened up the definition of disclosure in all the other clauses, but made no change in clause 4.
If the Government are arguing that only issues which endanger the national interest should have this protection, it would be wrong if it were not applied, for example, to reports about the mergers of companies or investigations by the serious fraud squad, where the need to give protection to the general public seems greater than ever.
Those of us who oppose the Bill in principle are grateful that the Government have brought forward this new definition, which will sharpen the position and heighten the test by which it will be decided whether an action endangers the national interest as opposed to jeopardises it. Will this apply to what I would call other minor and consequential disclosures and, if not, why not?
The Minister will accept that civil servants indulge in what I would describe as a "normal amount of disclosure" for a variety of reasons. Some of those might endanger the country, some of those civil servants might be bad people and some might just not be prepared to look on something confidential as confidential or something secret as secret.
Every hon. Member would accept that we must have some law to restrict their activities. On the other hand, when we have a law relating, for example, to companies, where the Government have complete and absolute power to decide whether a document should be published, and when and whether an issue should be referred to the Monopolies and Mergers Commission, and the person affected has no guarantee or protection, is it fair and reasonable that in that one case the Government are making no concession and no commitment? I hope that the Minister can give us some guidance as to why he is going forward with this in regard to international relations, which is a major concession, but is not prepared to make the same concession on clause 4.

§ Mr. Maclennan
It appears that the amendments are significant, particularly the amendment to clause 3. It will be recalled that in earlier debates we called in question the width of the nature of the documents that were protected from disclosure. By the use of the word "endangers" in preference to "jeopardises" the Government appear to be conceding that the nature of the documents themselves may be also somewhat confined by the use of the word endangers.
It is not conceivable that the interests of the United Kingdom abroad could be endangered by the revelation of, for example, certain minor communications about commercial matters which are the stuff of everyday traffic between Whitehall and Brussels, and in which the hon. Member for Southend, East (Mr. Taylor) takes such an interest. They might be important matters, involving the interests of the nation, but not matters about which it would be appropriate to use the word endangers. I hope that the Minister will confirm that that interpretation of the Government's intention is correct.

§ Mr. Jonathan Aitken (Thanet, South)
The amendments should be welcomed, but I wish to probe the Minister briefly on a linguistic point and a political point. As to the linguistic point, I simply seek his confirmation that he believes that the word "endangers" heightens the harm test. That may seem obvious until one goes back into the linguistic roots of language and realises that in older days to be in jeopardy was considered a much higher level of serious trouble than to be in danger. I refer to the example in the King James authorised version of the Bible when Uriah the Hittite was placed in jeopardy by King David sending him into the front line, which was considerably more dangerous than merely being in danger, as various other biblical characters were in less life-threatening situations.
With the passing of the years it is probably true that "jeopardises" has fallen behind and "endangers" has gone ahead. I simply wish confirmation from the Treasury Bench that it is certain that it is using the word in the modern sense and that "endangers" heightens the threshold of proof. That is desirable. I can see a good Queen's counsel in front of a jury managing to get an unfortunate victim or two acquitted by playing on the words and saying, "Members of the jury, can you believe that my client intended to endanger or cast into danger the whole interests of the United Kingdom," whereas many a civil servant might have been able to suggest that the interests of the United Kingdom were jeopardised by a minor leak.
Perhaps more important than the linguistic point is the Minister's attitude to the House of Commons, which he appears to place on an inferior level to the other place. When he made his few words of introduction, he clearly said that the Government have experienced this dramatic conversion on the road to Damascus, swapping the word "jeopardises" for "endangers" because of what was said in the other place.
11.45 pm
It is in the memory of many hon. Members in this debating Chamber tonight that exactly the same points were made on the Floor of the House by many hon. Members. I recall making some of them myself. At that time we met a wall of silence. There was not a single sign of any concession. The Minister might at least have the 148 grace to say tonight that the Government took into account what was said in the House of Commons, not just what was said in the other place. His words from the Dispatch Box this evening certainly gave the impression that only the arguments in the other place weighed with him.
Finally, I want to penetrate the mystery of the Government's thinking on this matter. Why have they decided to make this concession? On the whole, they have not been convinced by any argument from any source throughout the Bill's proceedings, yet they have suddenly introduced amendment No. 3. Was it a matter of letting one of the good amendments come up on a roulette wheel? Spin the wheel and see which number is lucky. Why this amendment? Why were the Government convinced about something which they rejected out of hand when it was discussed in this House?
In the old days when my right hon. Friend the Prime Minister was a member of the Cabinet one referred to the statutory woman. Now we have the statutory amendment. We have at last got the Government to accept one of the multitude of well-argued and convincing amendments. Why this one? I should like to know.

§ Mr. John Patten
rose—

§ Mr. Deputy Speaker
I take it that the Minister has to the leave of the House to speak again.

§ Mr. Patten
With the leave of the House, Mr. Deputy Speaker. The hon. Member for Caithness and Sutherland (Mr. Maclennan) made an important point about the substance and the meaning of the word "endangers" and its relationship to the Bill. My hon. Friend the Member for Thanet, South (Mr. Aitken) made a linguistic point and then laid down a political challenge. I shall deal with those points before dealing separately with the important points made by my hon. Friend the Member for Southend, East (Mr. Taylor).
As I explained in my brief introduction, the amendments respond to a suggestion that the jury would find it easier to cope with the concept of endangering than with that of jeopardising. I do not regard the amendment as making a substantial change in the effect of the test of harm, other than to make it more readily applicable and understandable by the jury. On balance, the average woman or man in the jury room might find herself or himself easier and happier with the word "endanger" than with the word "jeopardise".

§ Mr. Aitken
In seeing the amendment as something which does not change the Bill but simply helps the jury, is my hon. Friend hoping for more acquittals or more convictions?

§ Mr. Patten
The Bill, as my hon. Friend knows, is based on leaving matters to the jury. Ministers must keep their hopes, pious or not, to themselves, and I intend to do so tonight.
My hon. Friend made what was almost a constitutional point, referring to our earlier debate on the guillotine motion. I intended no discourtesy to this place when I referred to the other place. We are dealing with amendments sent to this House from the other place. Therefore, I have to refer to the other place, even though the right hon. Member for Blaenau Gwent (Mr. Foot) wishes it ill and a short life.

§ Mr. Maclennan
Is the Minister really saying that there is no difference in modern parlance between the use of the word "jeopardise" and the use of "endanger"?

§ Mr. Patten
I am simply saying what I said a moment or two ago, which will be recorded in Hansard. The jury will find it easier to cope with the concept of endangering than with that of jeopardising. All through the debate we have been talking about the use of words and trying to get the words right in an attempt to improve the Bill.
Tests of harm have been discussed at considerable length in the House and in the other place. Both Houses have agreed that the tests are based on the right principle and are set at the right level. Those issues have been settled and we should not seek to reopen them in this debate.
I turn to the important questions asked directly of me by my hon. Friend the Member for Southend, East. I hope that he will forgive me if I do not become too involved in company investigations and matters European. I certainly will not mention M. Jacques Delors, other than to do so now.
Clause 6(4) contains a damage test that attracts the language of the test in clause 2, in relation to defence, and in clause 3 in relation to international relations. Thereafter, it would be for the jury to decide, as always under the provisions of the Bill, whether the harm test had been met.
My hon. Friend the Member for Southend, East also asked about clause 4, and whether the change involving "endanger" affected clause 4. The answer to that question is no, because clause 4 does not attract the harm test to which the amendments refer.
Understandably, because of his interests, my hon. Friend the Member for Southend, East has made some comments which have gone wider than the terms of the amendments. The points that he raised about clause 4 are completely separate. The Government believe that the provisions in clause 4 are right and do not need amendment.
Question put and agreed to.
Lords amendment No. 4 agreed to.