ASSEMBLY FIRST SECRETARY AND ASSEMBLY SECRETARIES (Hansard, 22 July 1998)

Mr. Deputy Speaker
With this, it will be convenient to discuss Lords amendment No. 82.

§ Mr. Richard Shepherd (Aldridge-Brownhills)
I hope that, with the aid of my hon. Friend the Member for Rochford and Southend, East (Sir T. Taylor), I can persuade the House to disagree with Lords amendment No. 49.
The amendment is a response to what was clause 49 in the first version of the Bill that came before the House, which stated that, for the purposes of the Official Secrets Act 1989, all members of the Welsh Assembly should be Crown servants. The Under-Secretary of State for Wales, the hon. Member for Neath (Mr. Hain) accepted that that might be inappropriate. He gave assurances to the House that the Government would consider that and return with amendments in the House of Lords. They have done so, 1147 and now propose that only the First Secretary and other Secretaries—essentially the Executive Committee of the Welsh Assembly—should be Crown servants for the purposes of the Official Secrets Act.
The Under-Secretary—I take his views as having been sincerely expressed—has been concerned during his political career with the pervasiveness, extent and usage of the Official Secrets Act. I put it to the House that when one considers the nature, functions and duties of the Assembly, one wonders why any Official Secrets Act is necessary. The Government have advanced weak arguments here and in another place, where the amendment was moved.
The Government and the House accepted the necessity for an Official Secrets Act in respect of a restricted number of functions: defence, security, intelligence, foreign affairs and certain crime and investigative powers. None of those, per se, falls within the responsibility of the Welsh Assembly. They are, perhaps, relevant to the Secretary of State for Wales who sits in the British Cabinet, for whom those issues may arise, but in what respect would they arise for the democratically elected Assembly for Wales? The only example that the Under-Secretary gave the House, on 26 March, was the only relevant argument that he made. He said: Sensitive information might be provided to an Assembly Member, for example, on police investigations into allegations of child abuse in Wales. An Assembly Member, perhaps with responsibilities for social services on a subject committee, would properly have to have that information. However, he or she should be under an obligation not to disclose that information publicly."—[Official Report, 26 March 1998; Vol. 309, c. 727] He went on to say that the idea was not a novel one.
If one starts disinterring and asking what is behind this or why it is necessary, the example given is not necessarily appropriate. Many hon. Members will have served on county councils, local authorities and so on, where directors of social services are advised by the police in the course of their investigations as to sensitive matters. That does not require the Official Secrets Act or a swearing to it.
5.30 pm
All that I have ever asked the House since the Act came into being is that we should unpick the purpose behind it and ask why it is necessary. The Minister's argument does not stand up. Much confidential information that is exchanged would be covered by the Official Secrets Act. One of the problems that lies in the way that this is constructed is that the Minister is a Minister of the Crown. He may give information to Members of Parliament, or to anyone in society at large, but he is self-authorising, as long as it is within the construct of Cabinet policy. Who will self-authorise in a Welsh Assembly? The amendment is effectively gagging.
I simply ask the good people of Wales and of Britain how they can in conscience be bound when they come upon a piece of information that they profoundly believe is important to the well-being or safety of their constituents. I do not believe that they can be bound in those circumstances.

§ Mr. Dominic Grieve (Beaconsfield)
I am sure that my hon. Friend will agree that, in the course of our work 1148 as Members of Parliament, we receive confidential information. I certainly have on occasions from the local police force. That does not make me a Crown servant or require me to comply with the Official Secrets Act.

§ Mr. Shepherd
I am grateful to my hon. Friend for, in a sense, supporting an important contention.

§ Mr. Rhodri Morgan (Cardiff, West)
I think that we both agree that the Bill as amended by the other place is a huge improvement, and we welcome the Government's change of mind. The justification for the application of the Official Secrets Act, even to the Executive, needs to be stated explicitly. The hon. Gentleman's argument, with which I agree, is that there is much less justification for applying the Official Secrets Act even to members of the Executive, even to the First Secretary of the Welsh Assembly, than there is to Ministers of the Crown.

§ Mr. Shepherd
We do agree. On a quantum basis, it must be better that only the Executive of the Welsh Assembly is covered, rather than its totality, but the principle still remains. What is necessary to divide the Executive of the Welsh Assembly, whose members are elected on an equal franchise, different though it may be in type, from the other members of the Welsh Assembly?
In that context, other features of the Official Secrets Act are worrying. This is a life-long duty. A person who was a member of the Executive for perhaps only six months would, in theory, be bound thereafter until such time as he was released from that burden. Who releases people from that burden? None of them is self-authorising.
This is a battle that has been fought in Whitehall—I can see the nature of the civil service defending it—but, on the grounds advanced, the Minister did not give an instance that demonstrates why it is necessary to go to a democratically elected assembly. Nowhere else in the world do they try to impose this.
Lord Williams of Mostyn puts his finger on perhaps the critical reason. In a short debate, he accepted that the measure is unlikely to affect many issues or instances in the Assembly but, almost as a giveaway, he added: We believe that leading members of the assembly should be covered by the Act to permit a proper flow of information between civil servants and those with executive responsibilities."—[Official Report, House of Lords, 3 June 1998; Vol. 590, c. 354.] That is one of the themes that have caused confusion, certainly to me, as to the status of the Welsh Assembly. What is its relationship to the Crown in Westminster? We know full well that the Crown is another way of saying the Prime Minister, Downing street, the Cabinet supported by a majority in the House of Commons. This is very much a subordinate body. We are asking to whom civil servants owe their duty of allegiance. Is it to the parliamentary apparatus headed by the Prime Minister, or to the Welsh Assembly?
The Government have just said that the Welsh Assembly is merely a Crown body, so perhaps it falls into that. In the course of Lord Mostyn's address—[Interruption.] I shall just finish this point—he advises us that the Scottish Executive, no less, not a Crown body, will also be subject to the Official Secrets Act. So much 1149 for the claim of right where authority lies with the people. We again have the profound question: to whom do the civil servants owe their responsibilities and duties?

§ Mr. Tam Dalyell (Linlithgow)
That is an acute question in Scotland. I apologise to the Whips, but this is a central matter. The truth is that Pandora's box has been opened and we want to know whether the Cabinet Secretary and the other senior civil servants have agreed to what will amount to a breakdown in discipline in the British civil service. That is the issue.

§ Mr. Shepherd
I appreciate that, and that is why I am concerned. [Interruption.] Does the hon. Member for Rhondda (Mr. Rogers) wish to intervene?

§ Mr. Rogers
No, I wish to speak after the hon. Gentleman.

§ Mr. Shepherd
I am concerned about this. The culture of secrecy is one side of the argument, against which I tried to fight, because, even in the example given by the Minister of child abuse in Wales, the culture of secrecy did not aid the revelation of what was going on. Would it not have been better if people had come forward, and more loudly, at an earlier stage, rather than everyone being silenced by an Official Secrets Act?
The arguments put forward by the Government in relation to the functions and purposes of the Official Secrets Act are not appropriate for Wales. What signal does that give to Wales? Where is the culture of openness, which is the Government's flagship, no less? I have always been a believer in freedom of information. I fought the new Official Secrets Act. It was brought in, I regret to say, partly in response to my endeavours to reform section 2. There is no reason why a democratic assembly should be subject to it, in a way that does not happen in the rest of the world. Its application to Scotland compounds that outrage.
As this is a Report stage, the Government must give detailed arguments as to why the measure is necessary. I rather suspect that it is that final point—that the civil servants would not owe their duty to Ministers and the Secretaries within the Parliament and the Assembly. Therefore, they have to draw Assembly leaders into the circle of secrecy. [Interruption.] Does the hon. Member for Rhondda wish to intervene?

§ Mr. Rogers
I want to speak after the hon. Gentleman.

§ Mr. Shepherd
It is on that basis that we would argue that we disagree with the Lords amendment.

§ Mr. Rogers
Like other Labour Members, I am concerned about this critical issue. The Welsh Assembly was supposed to mark the new millennium with a new open democracy, all inclusive, which the people of Wales could crawl all over every day to see what their elected representatives were doing. Now people have to sign the Official Secrets Act. I am confused about why. Why does it have to be applied?

§ Mr. Grieve
Will the hon. Gentleman give way?

§ Mr. Rogers
I would rather not, because I want to continue with my argument. I have been a district and 1150 county councillor, a Member of the European Parliament and a Member of Parliament and, other than when I was in the Army as a lad, I never had to sign an Official Secrets Act. No Member of Parliament has signed it, except for Ministers of the Crown and those who are on the Intelligence and Security Committee, but that Committee is most peculiar, as it deals with national security.

§ Mr. David Davis (Haltemprice and Howden)
Will the hon. Gentleman give way?

§ Mr. Rogers
No. I want to finish. Hon. Members on the Intelligence and Security Committee have to sign the Act for specific reasons, but why should Assembly Members have to sign it? [Interruption.] I wish that the Deputy Chief Whip would let me make my speech. If he wants, I shall continue for an hour and a half—I shall make my point, as it is important. Why should Assembly Members have to sign the Act?

§ The Secretary of State for Wales (Mr. Ron Davies)
They do not.

§ Mr. Rogers
As I understand it, and as the Government briefing suggests, the provision will apply only to members of the Assembly Executive Committee, who will be Members of the Welsh Assembly. I do not suppose that the Secretary of State will deny that, unless he intends that the Executive Committee be made up of people from the arts and television. Why will members of the Executive have to sign the Act? Will they be privy to national secrets? As far as I can see, the Assembly will be only a glorified county council carrying out administrative functions. It will not indulge in any secret exercises.
As the hon. Member for Aldridge-Brownhills (Mr. Shepherd) said, people who are on county councils—chairmen and members of social services committee—deal with confidential information on child abuse cases. People who sit on education committees receive information on what happens in the education service, but they do not have to sign the Act, so why must members of the Assembly Executive Committee?

§ Mr. Öpik
Liberal Democrats, too, believe that we are discussing a matter of principle, but I want to put on the record our welcome for the fact that the Government have listened to the representations made during consideration of the Bill. The Official Secrets Act 1989 will now be restricted to the Assembly First Secretary and Assembly Secretaries, so it behoves us to acknowledge the fact that progress has been made. I have always found Ministers at the Welsh Office honest and open; I do not for a moment think that such individuals would need to be bound, even if they were to end up in the Welsh Assembly—I make the possible exception of cases that relate to the Powys health trust, which I must mention yet again.
Nevertheless, the Government have failed to make the assumption—which we must all make—that people who are elected to the Assembly will be honourable; we shall be able to be trust them to keep their mouths shut and not breach confidentiality without the threat of criminal proceedings. The provision on the Official Secrets Act is inappropriate, given the commitment—which I believe to be genuine—to government that is more open and does not depend on threats of prosecution to make people behave responsibly.
1151 We recognise that progress has been made, but we echo the comments of hon. Members on both sides of the House that it is inappropriate to impose the Official Secrets Act on Assembly Members. We strongly encourage the Government to listen to what we say. We want the Assembly to be an open book with a few private notes rather than a closed book with many hidden chapters.

§ Sir Teddy Taylor
As one of the hon. Members who tabled the amendment, I want to make a few brief points that I hope the House will bear in mind. When the hon. Member for Rhondda (Mr. Rogers) said that Assembly Members would have to sign the Official Secrets Act 1989, his comments were met with contempt by Ministers—the Under-Secretary of State, the hon. Member for Neath (Mr. Hain), seemed to shake his head as if to say rubbish. However, way back on 26 March, the Government were proposing that every Assembly Member should sign the Act. On that occasion, my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and I tabled an amendment to point out that the proposal was an outrage.

§ Mr. Shepherd
In fact, the proposal was much worse; not only did Assembly Members have to sign the Act, but that was mandated by a Westminster statute—they had no alternative. To say that they were required to sign it suggests that they could have said, "I don't wish to sign it." The statute will now affect only the Executive of the Assembly, but it was intended to apply to all Assembly Members by fiat.

§ Sir Teddy Taylor
How right my hon. Friend is. The Government had proposed that, unlike all other democratic assemblies of which I know, the provision would apply to all Members. Happily, a minor change has been made.
On 26 March, I asked why the measure would apply to Wales but not to the Scottish Parliament. The Under-Secretary seemed to have acquired a delightful new interest in democracy, so I was staggered when, a few weeks later on 5 June, it was announced in the House of Lords that the provision would apply to the Scottish Parliament.

§ Mr. Grieve
The simple answer to why that was been done must be that the Government believe that it is impossible to govern across the United Kingdom without the exchange of secrets between themselves and those in office in Wales and Scotland. That, of course, strikes at the root of democracy; the provision fetters those in the Scottish Parliament and in the Welsh Assembly, preventing them from responding to the needs of their electorates.

§ Sir Teddy Taylor
I am delighted to hear those words from my hon. Friend. I look forward to his joining me in the battle for democracy whether we have a Conservative or Labour Government—that will be great news for democracy.
1152 I make a point of not attacking people in the House, but I hope that the Under-Secretary—not the Secretary of State, for whom I have a high regard—will appreciate that he was regarded as someone who would fight for liberty and for people's rights. However, he defended a proposal that would apply the Official Secrets Act to every Assembly Member.
What secrets are involved? The impression may be created that the Government are thinking only of massive issues, but that is wrong. I urge hon. Members to consider what respected members of their parties said when the Official Secrets Act was passed. Roy Hattersley, for example, pointed out that it applied not only to big issues, but to every piece of paper marked confidential or above. We were told that there would be a harm test, but, sadly, that does not work.
I hope that hon. Members will also ask themselves what the blazes they would do if they were Executive Members of the Assembly and found a United Kingdom Government or European Union document that contained scandals or abuses that would damage Wales—not England or necessarily Britain, but specifically Wales. Under the provision, Executive Members of the Assembly would not be allowed to refer to such a document in any way. Members of the Executive should be fighting for Wales, so why should they not be able to reveal information about a new policy that would hit Wales hard?
The Government should appreciate that the Welsh Assembly is not a branch or subsidiary part of the UK Government but something separate. I did not want a Scottish Parliament or a Welsh Assembly, but, as we are now to have them, we must appreciate that their task is to fight for Scotland and for Wales. Unfortunately, by applying the Official Secrets Act, the Government are giving the impression that they regard the Welsh Assembly as a branch of their operation. The provision is wrong and unnecessary, and I believe that we should accept the Lords amendment. The Official Secrets Act should not apply—the proposal is an insult not only to Wales, but to democracy.

§ Mr. Ron Davies
I understand that the House wishes to reach a swift conclusion, so I shall curtail my remarks. I compliment the hon. Member for Aldridge-Brownhills (Mr. Shepherd) on the way in which he presented his case. I pay tribute to him, and to the hon. Member for Rochford and Southend, East (Sir T. Taylor) for the way in which they have consistently argued their case. Their beliefs are genuine, but wrong; I shall briefly explain why.
The hon. Member for Aldridge-Brownhills correctly described the history of this debate. The last time it occurred in this House, on Report, the Under-Secretary of State for Wales, my hon. Friend the Member for Neath (Mr. Hain), said that the Government intended to give further consideration to the matter. We tabled amendments in the other place, which were discussed there, and we now propose to agree with those amendments.
The Bill, as amended, provides that the Assembly First Secretary and the Assembly Secretaries are to be Crown servants for the purposes of the Official Secrets Act. As I told my hon. Friend the Member for Rhondda (Mr. Rogers), the provision does not apply to Assembly Members per se. The proposal is consistent with our 1153 earlier debates on the issue. Assembly Secretaries will be acting in a quasi-ministerial role and might, from time to time, need to be entrusted with classified information within the meaning of the Act. Lord Williams and police investigations into child abuse were cited, and there are other instances in which classified information might have to be given to Ministers.
The amendment is also essential if Assembly Secretaries are to discharge their responsibilities to the Assembly in European and other international negotiations. If Assembly Secretaries were not bound by the Act, it is quite possible that a Minister of the Crown would be legally unable to share information about such negotiations with them. That would leave the Assembly unable to use the powers available to it to address many matters of vital interest to Wales.
The House will recall that, on Report, the right hon. Member for Devizes (Mr. Ancram), who was then Opposition Front-Bench spokesman on constitutional matters, with his hon. Friends tabled amendments that were identical in effect to the amendment before us now; so did the right hon. Member for Caernarfon (Mr. Wigley), his hon. Friends and my hon. Friend the Member for Wrexham (Dr. Marek). It is therefore reasonable to assume that amendment No. 49 fully reflects a cross-party consensus in the House. I noted with interest the support for the Government's position expressed by the hon. Member for Montgomeryshire (Mr. Öpik). There is a cross-party consensus—one to which the Government rightly responded in the other place. I might add that the amendment was warmly welcomed by the Conservative Front Benchers in the other place. I trust that Conservatives in this House share that view.
If the hon. Member for Aldridge-Brownhills gets his way and the amendment is not accepted, members of the Executive Committee will be seriously hampered in their work. They might well be unable to discuss matters of crucial interest to Wales with Ministers of the Crown. They would also have to assent to conditions imposed by civil servants on each and every occasion that they required access to classified material. That would be both inefficient and a distortion of the proper relationship between senior elected Members and their officials.

§ Mr. Shepherd
It is perfectly true that the then Conservative Front-Bench team and the Liberal Democrats in the other place supported the amendment. However, the Secretary of State should remember that there is a fall-back position from the totalitarian grasp whereby everybody is covered by the Act. Even in the House of Commons, we had a fall-back position. The Secretary of State will have noticed that the Conservative Front Benchers in this place supported the amendment in the name of my hon. Friend the Member for Rochford and Southend, East (Sir T. Taylor), so the right hon. Gentleman should not over-emphasise that point.
This is meant to be an intelligent debate in which we test the arguments being advanced. We are hopeful that, when the Bill returns to the Lords, the Government will have reflected on the issue, but it does not sound as though they will, from the Secretary of State's speech.

§ Mr. Davies
Like the Conservative party, we are a listening Government, and it would be wrong of me not to say that we shall listen carefully to all the comments 1154 that have been made. However, I cannot hold out any prospects, because the matter has been debated and we listened carefully when it was considered on Report. We made a sensible amendment in the other place, and the provision that we now have reflects the need to ensure that the Assembly can conduct its business properly.
If we were to remove the amendment, that would cause considerable doubt about how the Official Secrets Act applied to the Assembly in the conduct of its business. It is possible that, without there being any provision on the face of the Bill, the courts might look at clause 1(3), which gives the Assembly Crown status, and conclude that all Assembly Members were bound by the Act as Crown servants. That is precisely the opposite of what the hon. Member for Aldridge-Brownhills wants.
I am disappointed that the hon. Gentleman seeks to re-run this argument and to overturn an amendment that I genuinely believe improves the Bill and reflects a cross-party consensus both here and in the other place. I am also disappointed that, in so doing, he would leave the Executive Committee in doubt as to its status and hampered in its work. I urge the House to reject the hon. Gentleman's motion and to agree with the Lords in the amendment.

§ Mr. Shepherd
With the leave of the House, Mr. Deputy Speaker, I should like to respond to the Secretary of State's speech.
I have to say that, no, I do not accept the Secretary of State's argument. I could have written his brief—indeed, it could have been written at any time in the 18 years of the previous Government. No instance—not one—was given of a case where the ability of the Welsh Assembly to address the matters relevant to its remit as a Crown body was constrained. There was only a generality of arguments. My hon. Friend the Member for Rochford and Southend, East and I contended that the European dimension—information exchanged between Governments in confidence—would be excluded from the knowledge of the Welsh Assembly. It clearly is of some importance to the Welsh Assembly.
The measure sends out entirely the wrong signals: there is no need for it, and the Government have not made a case for it. I apologise for not having been present on 3 May when the amendment in my name was debated. I was in Canada, meeting the commissioner for freedom of information. The Bill as it stands is truly unsatisfactory. It does not reflect the position of the Opposition, because one key element is missing from the Official Secrets Act—there is no public interest defence.
My rational final point for the Government to consider is to ask how they could seriously mount a prosecution. I shall take an outside-world case, that the leader of the SNP is a Member of the Scottish Parliament and information comes to him that there is something perverse or wrong about Dounreay. What law in the land could hold or bind a man of conscience who wanted to bring to public notice such a threat or fear? No prosecution could succeed. The trouble with the old Official Secrets Act was that it had fallen into disrepute, and the new Act was an attempt to modernise its provisions.
There is no purpose behind the amendment. I am sorry that there was only a three-column debate in the House of Lords, because the issue requires proper reflection. The new Labour Government are sworn to openness; I believe 1155 that, in the past, the words "unbundle Britain" have been used by a right hon. Labour Member. I believe in the democratic rights of the people because of the oldest argument of all: how can we reason but from what we know? A Welsh democratically elected Assembly should be party to the information that is important to the government of Wales.