HC Deb 26 March 1998 vol 309 cc721-35

6 pm

Sir Teddy Taylor (Rochford and Southend, East)

I beg to move amendment No. 1, in page 38, leave out lines 26 and 27.

Mr. Deputy Speaker

With this, it will be convenient to discuss amendment No. 2, in page 38, line 26, leave out 'Assembly', and insert 'Executive Committee'.

Sir Teddy Taylor

We have been told throughout the long debates on the Bill that these are important days for Wales, so I hope that the House will appreciate that this is a terribly important day for me—this is the first time in my 34 years in the House of Commons that Front-Bench spokesmen have joined me in tabling an amendment. The amendment is, therefore, obviously of great significance, and I hope that the House will listen carefully to my arguments. The amendment would remove clause 79, which states: An Assembly member is a Crown servant for the purposes of the Official Secrets Act 1989. Hon. Members will have been reassured by the fact that I have tried hard not to speak in the debates on the Bill, as I appreciate that the people of Wales probably feel that a Member of Parliament representing Southend-on-Sea, who came from Glasgow, is not the best person to advise them on their constitutional welfare.

I genuinely believe, however, that the amendment must be debated and considered, as it relates to the much wider issue of democracy and the rights of elected persons to safeguard their constituents' welfare and, equally important, to search out, identify and expose errors, misjudgments or even scandals of the Executive. Because of the importance of that function, the basis of our conduct in Westminster is that we have parliamentary privilege, which enables us to voice any opinion and to raise any issue that we think appropriate. There is no restriction on our conduct; the Official Secrets Act does not apply to us.

Moreover, the Act does not apply to local government councillors, and it will not apply—perhaps because they are angrier—to Members of the Scottish Parliament. However, the Bill proposes that Members of the Assembly should be subject to it. That is a horrifying democratic restriction, which my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) believes must be removed.

Why on earth was the clause inserted in the Bill? In questioning the Secretary of State for Wales and his colleagues, the only answers that we have been able to secure are, first, that the officials did not want to leave out anything that might be necessary and, secondly, that the clause was designed to take account of the fact that the Welsh assembly would do important work. Even if that were the whole argument, is it really the case that the work will be more important than the work done in the Westminster Parliament, which is the elected body that handed over a limited part of its functions to the assembly?

Before hon. Members dismiss my arguments, I hope that they will consider the full implications of the Official Secrets Act. Under section 3—which relates to information from international bodies, such as the European Union—Members of the Assembly could be prosecuted for revealing information that was marked restricted, confidential or secret. The previous Foreign Secretary—who was a Conservative—argued strongly in the House that there would have to be a "harm test" before the Act applied. That was a load of rubbish, of course. As my hon. Friend the Member for Aldridge—Brownhills and I both pointed out, section 3(3) has two paragraphs, one relating to the damage test and the other stating simply, of the document or information, the fact that it is confidential". Unless the amendment is made, if a Member of the Assembly came across a piece of paper from an international body, such as the European Union, that suggested to that person that there was an abuse, scandal or policy that was damaging to Wales, the Member of the Assembly would find that he was obliged to make no reference to it—he could say nothing. Other measures in the Official Secrets Act are so tight, restrictive and debilitating that to want to apply them to a democratic assembly seems little more than insult.

Those are the views of a Conservative Back Bencher, to which hon. Members may not want to pay too much attention. However, I assure Labour Members that the views are not mine alone. In the debate on the Official Secrets Bill, some splendid Labour champions of liberty spoke. Roy Hattersley, the then shadow Home Secretary, said: Under the Bill, anything remotely related to security, no matter how trivial, will be covered."—[Official Report, 21 December 1988; Vol. 144, c. 475.] The current Secretary of State for Health, who was then a champion of freedom and liberty, made a passionate speech, saying: In Winston Churchill's words … the Official Secrets Act was 'intended for spies, crooks, traitors and traffickers in official information.' The Official Secrets Act was not intended to protect the Government from scandal being revealed or to prevent them from being found out when they lie, deceive or disinform, as all Governments do. Surely we as a Parliament have not sunk so low that we want to introduce new laws to protect official wrongdoing."—[Official Report, 13 February 1989; Vol. 147, c. 79.] I hope that the Secretary of State for Wales will ensure that the Secretary of State for Health pins up that extract from Hansard on his ministerial wall.

Lord Irvine, the Lord Chancellor—he was then shadow Lord Chancellor—wrote in a journal a complex, lofty and rather confusing article with the intensely democratic title.

"Law Reform for All". He said that the Act failed to recognise the public interest to know of Government abuses of powers, and argued that there was no public interest defence for whistle blowers. I am sure that, as a fundamentalist for civic liberty, he would have been as appalled as others have been about reports of public contractors being asked to submit themselves to the Official Secrets Act before they stuck the wallpaper on to the ceiling.

Mr. Eric Forth (Bromley and Chislehurst)

Will my hon. Friend analyse why Members of the Scottish Parliament will not be covered by such a provision, despite the fact that—I hope that no one will take offence at this —the Scottish Parliament will have much wider legislative powers than are proposed for the welsh assembly? Does it not seem bizarre that neither Members of the House of Commons nor Members of the Scottish Parliament are covered by such a provision, whereas Members of the Assembly will be?

Sir Teddy Taylor

My right hon. Friend is absolutely right, but I think that he knows the answer. The Scottish people—I am one—would not put up with that kind of thing. I am told that Welsh people have many good qualities—they tend to be more polite, to be less angry and perhaps to wake up to things a little later than Scotsmen, although they have plenty of wisdom and ability.

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy)

They play better rugby.

Sir Teddy Taylor

They are very good at rugby, but they should do something when their democratic rights are threatened, as the Scots would have done. In Committee, we heard nothing about the provision. After I had tabled the amendment, the Welsh nationalists tabled a more limited one—I am delighted that they have noticed hat is going on. Frankly, we have to tell people that the matter is important.

As the new Labour Government are, we are told, made up of passionate believers in free speech, in democracy and in the right of democratic representatives to go all the way, I can only think—especially as the Secretary of State for Wales is so courteous —that the inclusion of clause 79 in the Bill was a bureaucratic error. It must be removed.

Colleagues will know that, throughout my parliamentary carrer, I have been wholly opposed to a devolved assembly. However, as on so many other things, I am afraid that I have been outvoted and am in a minority. The only thing that keeps me going in the house of Commons is the passionate hope that I am wrong and that the majority are right in their support for policies such as devolution, which I think is rubbish, Euro—integration, which I think is dangerous, agricultural support, which I think is wasteful, and proportional representation, which I believe is the destruction of democracy I am worried about all those things, I hope that I am wrong and the majority and right.

Whether or not people agree with me—the great majority never seem to agree with me on anything here—we know that welsh devolution is going ahead. I hope that, despite my fears, it will benefit wales and its people. Surely, if we are to have a Welsh assembly and we believe in it, its Members must be free. They must not be curbed or abused and they must not be restricted by the Official Secrets Act.

I appeal to the House to look at this solitary and simple amendment, which is the only amendment tabled by my hon. Friend the Member for Aldridge—Brownhills and me, and accept that it is the right way forward for Wales and democracy. I know that hon. Members sometimes table amendments because they are funny, because they want to cause a political row or something like that. I can assure the Secretary of State, whom I respect as a courteous man, that there is a fundamental principle involved. If we do not take this provision out of the Bill, the Welsh assembly men will be deprived of their entitlement to look after their constituents, to look after Wales and to watch the Executive carefully and properly. I hope that the House will look carefully at amendment No. 1 and approve it, particularly since I have support from my Front Bench and from previous Labour Cabinet members who spoke in debates on the Official Secrets Act.

Mr. Llwyd

I want to speak to amendment No. 2 which is in my name and that of my right hon. and hon. Friends. I agree, at least in part, with the comments of the hon. Member for Rochford and Southend, East (Sir T. Taylor), so this is also an historic day for me.

By the way, I do not think that the difference between the Scottish Parliament and the National Assembly for Wales is due to the character of the Scots or the Welsh and it ill behoves a Euro-sceptic to analyse characteristics of that kind. The true answer is that one is a legislative body and the other is not, and it need go no further than that.

I was pleased to agree with several of the opening remarks of the hon. Member for Rochford and Southend, East. I agree with the analysis that Members of the Assembly will be hampered to a great extent. That has to be wrong, because they will serve the people who have elected them.

Clause 79 would make every member of the national assembly Crown servants for the purposes of the Official Secrets Act. As the hon. Member for Rochford and Southend, East said, eloquently, previous parliamentarians have looked carefully at that Act. When he was shadow Home Secretary, Roy Hattersley made some cogent and informative remarks which were quoted by the hon. Member for Rochford and Southend, East. The hon. Gentleman also referred to the comments of the present Secretary of State for Health who said, very stringently, that the Official Secrets Act was intended for spies, crooks, traitors and traffickers in official information. I do not think that Members of the Assembly will fit that bill. Therefore, the Bill is flawed to that extent.

Sections 1 to 6 of the Official Secrets Act set out certain categories of information which are protected. Nevertheless, in this place we are protected by parliamentary privilege and by article IX of the Bill of Rights. In both those cases we are able to express any and all opinions that we see fit on behalf of our constituents and in the process of legislating. I believe that clause 79 is dangerous and I am at a loss to fathom why it is in the Bill.

I pay considerable homage to the hon. Member for Cardiff, West (Mr. Morgan), who has assisted us by sending certain important letters to hon. Members on both sides of the House. That has informed the debate and made it far easier for us to undertake it. I hope that the Minister will reveal the way in which the Government will be moving, because the current position is ridiculous. It means that Members of the Assembly will be bound by the Official Secrets Act. A Member who is bound by the Act is not worth a candle. They will be precluded from saying or doing many of the things that they would wish to say or do.

One of the criticisms of the Official Secrets Act was that it failed to achieve its purpose. It did not increase public access to official information. Applying the 1989 Act in this case would close down any dialogue and would be a democratic abuse. I hope that the Minister will provide some form of safeguard when he responds to this short, but important, debate.

6.15 pm
Mr. Rowlands

The hon. Gentleman referred to the documents and correspondence in circulation. One of the points that he drew to our attention, rather interestingly, is that our privileges here are determined by article IX of the Bill of Rights. It says: the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament". Might not the simple solution be to apply article IX to assembly men and women?

Mr. Llwyd

The hon. Gentleman is right. If that were the case, there would be no problem. Perhaps my amendment and that of the hon. Member for Rochford and Southend, East are a rather convoluted way of going about things. If the Minister were to assure us that article IX would apply, as the hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) said, there would be no problem. I hope that the Minister will make an announcement, because failure to do so will be challengeable in any event. There is a body of learned opinion to support—

Mr. Owen Paterson (North Shropshire)

I remind the hon. Gentleman that the prospectus for the referendum was the White Paper, "A Voice for Wales". Page 28 of that document says: The Assembly will operate under maximum openness and public accountability. Is this clause not a total contravention of that?

Mr. Llwyd

I am afraid that it is. Again, I find myself agreeing with a gentleman with whom I do not often agree.

Mr. Forth

It is a funny old world.

Mr. Llwyd

Yes it is. The word "inclusiveness" is the big word in connection with the Welsh Bill.

I shall come to a conclusion because I know that other hon. Members want to speak and there is a lot of work to be done today. However, I want to flag up one more important point, which was made by Liberty. That body said that clause 79 may be challengeable under article 10(1) of the European convention on human rights. No doubt I part company here with the hon. Member for Rochford and Southend, East, who is already in a violent fit of temper. The article states: Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authorities and regardless of frontiers. Freedom of expression, as secured in that article, is an essential foundation of any democratic society. I agree with that. I hope that the Minister will give assurances that those serving in the national assembly will not be hampered in this way. I hope that we will be able to discuss whether to withdraw the amendment.

The Parliamentary Under-Secretary of State for Wales (Mr. Peter Hain)

I apologise for rising so early in the debate, but I thought that it might assist the House if I were to respond to some of the points now. As a long-standing advocate of the principle of freedom of information and a campaigner against official secrecy laws applied in a draconian fashion, there is no way in which I would have been party to any assembly Member being gagged; nor was it ever the intention of my right hon. Friend the Secretary of State so to do. He has been similarly committed to the principle of freedom of information for a very long time.

I congratulate the hon. Member for Rochford and Southend, East (Sir T. Taylor) on the way in which he moved amendment No. 1. I also note the way in which Opposition Front Benchers have signed up lock, stock and barrel to his position. That shows how far the Conservative party has moved recently on the matter.

I also pay tribute to the work—in the House and elsewhere—on the principle of official secrecy done by the hon. Member for Aldridge—Brownhills (Mr. Shepherd). He serves as an example on the issue to us all.

Amendment No. 1 would remove clause 79 from the Bill, which would then say nothing about the position of assembly Members in relation to the Official Secrets Act. Conversely, amendment No. 2—which was ably spoken to by the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd)—would simply limit the category of Crown servants bound by the Act to members of the Executive Committee. That is an entirely different proposition, as I shall explain shortly.

Ministers of the Crown and civil servants are Crown servants. My right hon. Friend the Secretary of State—like me and my hon. Friend the Under—Secretary—is bound by the Act in his official capacity. As we have explained previously, his functions are to be transferred to the assembly. It was thought appropriate that the position of assembly Members performing functions on behalf of the Crown, and in place of the Secretary of State, should be made clear. Clause 79 therefore declares that all assembly Members are Crown servants for purposes of the 1989 Act.

Clause 79 reflected the committee structure that was proposed before acceptance by the House of the new clauses—the motions on which were moved by my right hon. Friend the Secretary of State—on a cabinet structure, which has created an entirely new situation. It is necessary to amend the Bill to reflect that new situation.

Although I agree strongly with the hon. Member for Rochford and Southend, East that assembly Members must be free to express their views—it is a fundamental principle of the House, as I am sure it will be of the assembly—his statement that the 1989 Act does not apply to Members of Parliament is not true. If an hon. Member discloses an official secret other than in proceedings in Parliament—such as in a newspaper article or in a speech outside the House—he or she may be subject to prosecution, like anyone else. That principle was established in the Duncan Sandys case, in 1938.

Mr. Rowlands

I am following my hon. Friend's argument. The 1989 Act does not apply in this place. Therefore, why will it apply in the assembly?

Mr. Hain

I shall deal with that point in a moment. However, I should make it clear now that the assembly is a Crown body and is, therefore, in a different position from the House.

The Government are therefore inclined to accept in principle the thought behind amendment No. 2. We should like to examine technical ways in which the amendment might be recast, so that the underlying principle—on which we agree—is better applied. If the amendments in this group are not pressed, we propose to table our own amendment in another place to deal with the points, which we accept.

I hope that hon. Members do not overstate the matter dealt with in the amendments. The 1989 Act covers information in spheres such as security, intelligence, foreign affairs, defence, crime or special investigations and international confidences—matters which, for the most part, are light years away from the assembly's responsibilities, as listed in schedule 2. Therefore, on only rare occasions might information covered by the Act go to any assembly Member, whether he or she was an Executive Committee member or an ordinary assembly Member.

Mr. Oliver Letwin (West Dorset)

Before the hon. Gentleman moves on, I should like to take him back to the moment at which he said that it was necessary to amend the Bill because of the change from committee to cabinet structure. Is he saying—following yesterday's comments by the Secretary of State—that he would wish to reintroduce the clause on official secrets if the assembly chose to return to a committee structure?

Mr. Hain

If the assembly returned to a committee structure, Executive Committee members would be covered by the Act. Consideration might have to be given to extending by order the Act's coverage to subject Committee members, but that would be a matter for consideration by Parliament and by the assembly. I should have thought that the entire issue would be examined in an entirely fresh light—particularly given the manner in which this group of amendments has been tabled and spoken to.

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. The idea is not a novel one. The principle that Back Benchers should sometimes receive sensitive information has been applied in the House, where—under the Intelligence Services Act 1994—they serve on the Intelligence and Security Committee. Hon. Members who serve in that capacity are, of course, covered by official secrecy legislation.

I should also distinguish between official secrecy legislation and confidential information—perhaps dealing with commercial matters, such as an inward investment project—which might be passed to an assembly Member. Such an assembly Member, perhaps in his or her capacity as a subject Committee member, would be expected to apply the principle of confidentiality.

Sir Raymond Powell (Ogmore)

I am trying to follow my hon. Friend's argument. Perhaps some hon. Members do not wish to become Members of the Assembly because they are confused about whether—in Cardiff, unlike this place—they will be covered by official secrecy legislation. I am confused when we talk about freedom of information and the freedom to express ourselves, whether in this place or in the Welsh assembly.

Mr. Hain

I tell my hon. Friend that there is absolutely no confusion. Members of the Welsh assembly will be as free in their new assembly in Cardiff as he is in this place to express a view. Page four of the freedom of information White Paper "Your Right to Know"—a very important document, which will be followed by legislation in the House—states: In Wales, the Act will cover the National Assembly for Wales (as a Crown body) and other public authorities. The freedom of information Act will have the principle of freedom of information at its heart.

Now that we are moving towards a clearer division in the assembly between those with daily Executive responsibilities and those who will play a rather different role on the subject Committees, we will have to amend the Bill along the lines suggested by amendment No. 2.

Mr. Rowlands

My hon Friend has been extremely helpful. However, only yesterday, we added to the Bill a new clause that will allow the assembly to delegate functions not only to the Executive Committee but to Committees of the assembly. Does that mean that the 1989 Act will apply to Committee members the moment functions are delegated to a Committee?

Mr. Hain

No, because those functions would not infringe on the responsibilities covered by the Act. If they did, the principle would apply to any assembly Member, as I have already explained.

Sir Teddy Taylor

Would I be remiss in thinking that something has to be done? Would not the sensible thing be to pass amendment No. 1, get rid of clause 79 and table a new, detailed proposal in the other place?

Mr. Hain

In the nicest possible way, I remind the hon. Gentleman that that is what I have said. We shall table an amendment in the House of Lords to reflect many of the views that have been expressed this evening, because we agree with them. We have to devise the right form of words.

The assembly will not hide behind the Official Secrets Act. It will be a new democratic institution of participatory democracy. The underlying principles will be openness and "inclusiveness" to build a new, vibrant democracy in Wales. [Interruption.] The right hon. Member for Devizes (Mr. Ancram) scoffs. We are introducing the democracy that he and his Government repeatedly thwarted during the 18 years of miserable rule from which Wales suffered.

Those with Executive responsibilities in the assembly should continue to be regarded as Crown servants for the purposes of the Official Secrets Act, as Ministers are. We accept that the category of Crown servant for the purposes of the Official Secrets Act should apply only to members of the Executive Committee and not to ordinary Members of the Assembly. We shall bring forward amendments accordingly. Given that assurance, I hope that leave will be sought to withdraw the amendment.

6.30 pm
Dr. Marek

I signed amendment No. 2, which was tabled by Plaid Cymru Members. I am pleased that the Minister has agreed to do something about the problem. However, it will continue to exist because the assembly will be a Crown body. To the Treasury, the Prime Minister and the Cabinet, a Crown body means a Government body. The United Kingdom Government decide what is an official secret.

It is difficult to think of examples on the spot, but I shall try. Let us suppose that the Budget for a financial year is being decided in the UK Cabinet with the help of the Secretary of State for Wales. Will UK civil servants impart information about the Government's public expenditure programme and how much money will be passed to the Welsh assembly before the final decision is made, without being certain that the people to whom they pass that information will be bound by the Official Secrets Act? I suspect that they will not, but if I am wrong, I shall gladly give way to my hon. Friend.

Mr. Hain

I hope that I can set my hon. Friend's mind at rest. The exchange of information outside the protected categories between Whitehall Departments and the assembly will be covered in concordats.

Mr. Michael Ancram (Devizes)


Mr. Hain

I thought that that would excite the right hon. Gentleman. If a party requires confidentiality, that will have to be written into the concordats and properly respected. Business between the assembly and the Government could not operate in any other fashion. A breach of a concordat's provision on confidentiality would not amount to a breach of the Official Secrets Act.

Dr. Marek

Let us consider matters that would be subject to the Official Secrets Act, such as the disposition of defence facilities in the Principality. Even if the members of the Executive Committee of the national assembly decided, in the interests of the people of Wales, that the information should not be secret, they could not make it public because they would be bound by the Official Secrets Act, which would be interpreted by the UK Government. I foresee continuing problems.

I thank the Minister for the effort that he has made. The national assembly will have a Cabinet form of government and will get classified information from time to time, as do Members of Parliament. Members of Parliament treat such information with respect and use their judgment. I believe that Members of the Assembly will do the same.

The Government have sought to tie down the national assembly as much as possible. The Bill is so tightly drawn that no Member of the Assembly will be able to speak up or use their judgment on any classified information. The Government have promised to table an amendment to alter that. As the Bill stands, the Executive Committee—the Welsh Cabinet—may not be able to make certain information public, even if it wants a debate or wants to receive representations.

Sir Raymond Powell

Is my hon. Friend satisfied that the Bill will come back from the other place in the amended form that we would like?

Dr. Marek

Yes. The Minister clearly promised to get rid of the clause. I have full confidence in him. There will be a clause restricting the operation of the Official Secrets Act to the Secretaries and the First Secretary of the national assembly. However, I am still worried that we have not sorted out this important issue. I pay tribute to those who raised it. I hope that the House of Lords pays careful attention to it.

Mr. Öpik

Most of the arguments have already been made. If the clause remains in the Bill, it will set a dangerous precedent. A vital part of the role of any elected Member is to blow the whistle on corrupt or unacceptable practices. The danger of enshrining the Official Secrets Act as proposed is that a corrupt leadership could easily use it to cover bad practice. However willing some of the incorrupt Members of the Assembly were, their hands would be tied because they would have to break the law to bring forward issues of concern.

As the hon. Member for North Shropshire (Mr. Paterson) said, clause 79 goes against the principles of openness set out in the freedom of information White Paper. He also referred to the White Paper "A Voice for Wales". The Government must realise that the debate is not merely academic. The amendment that they table in the House of Lords must be open. Unless political parties intend to field spies, crooks, traitors and traffickers in official information

as candidates for the assembly, there is no need to be paranoid about who stands, even if the Conservatives return to politics in Wales.

The Minister said that he shared the concerns underlying the amendments. I know that he is a great friend of freedom of speech. I am encouraged by his assurance that the Government have taken heed of the debate and will consider tabling an amendment in the House of Lords. We would prefer them to follow the principles of amendment No. 1, rather than amendment No. 2, and leave the matter open, because it is easier to protect information than to trust the public and Members of the Assembly to do so.

We have repeatedly discussed the assembly as a new and inclusive form of politics that will leave corrupt practice behind and create a co-operative spirit in which people are assumed to be sincere, so we must ensure that the Official Secrets Act is not used in a way that tarnishes the high expectations.

We must begin by acting in good faith, and whatever the Government come up with must be framed in that spirit, or they can expect fierce conflict with supporters of free speech, the resistance of Opposition Members, and the cynicism of the Welsh public.

Mr. Tam Dalyell (Linlithgow)

This is Pandora's box, a can of worms, or whatever one cares to call it. Imagine an Official Secrets Act trial taking place in Cardiff, Swansea or somewhere else. I do not know whether the Minister has ever sat through an Official Secrets Act trial. For 11 days at the Old Bailey I attended the trial of a present resident of Wales, Clive Ponting. One has to see it in operation to believe how complex such a trial can be and how many extraneous matters can be introduced.

I offer this warning: given the politicians that the Members of the Assembly will be, and that there is another Parliament—the British Parliament—there will be an overwhelming temptation to leak, at the expense of the Treasury in Great George street, to further political grouses and dissatisfactions. That temptation will lead to the cutting of corners. I predict that, sooner or later, there will be flagrant breaches of official secrets legislation.

We are not discussing something up in the air, in fairyland, but a grave reality that will come about. In those circumstances, I beg my right hon. and hon. Friends to be careful.

Mr. Hain

Does my hon. Friend agree that it is not unknown for Whitehall Departments to leak against one another?

Mr. Dalyell

It certainly is not, and I suspect that my hon. Friend knows more about that than I do.

Mr. Hain

To set my hon. Friend's mind at rest, let me assure him that I was talking about the previous 18 years of Conservative rule.

Mrs. Gwyneth Dunwoody (Crewe and Nantwich)

I apologise for intervening in the debate. One has some reticence about getting involved in a matter that is so important to the land of my fathers. Because the matter is so fundamental, and the clause is so obviously wrong, might not it be more comfortable for the House of Commons if the Minister were to withdraw the clause altogether, with a view to introducing something else? I am one of those depressing people who, like my hon. Friend the Member for Linlithgow (Mr. Dalyell), have been here a long time and fought a few battles, and I know that hon. Members are sometimes told that they did not object when they had the opportunity.

Mr. Dalyell

It is the first time in 33 years that my hon. Friend has been reticent. She expressed my thought so eloquently that I shall leave it at that. She has made the point better than I could.

Mr. Evans

It is a tremendous privilege to follow the hon. Members for Linlithgow (Mr. Dalyell) and for Crewe and Nantwich (Mrs. Dunwoody). She may be reticent, but there is nothing depressing about her. Both hon. Members were absolutely right. As the Minister said, there may be a temptation to leak that goes alongside the necessity to spin in Whitehall under new Labour.

We have had some revelations today. Apparently, Whitehall Departments leak against one another; I am sure that that does not happen in the Welsh Office. Given all his campaigning in various parts of the world on behalf of openness and against tyrannical and oppressive regimes, why has it taken the Minister four months to realise that the clause, in a flagship piece of legislation, is wrong? Did it come to him as a complete revelation—as happened to the Secretary of State when he realised after 40 years that Cardiff was the capital of Wales—that the clause ran counter to everything that he believes?

6.45 pm
Mr. Letwin

Does my hon. Friend agree that we could help the Minister by explaining that this reveals something deep about the Bill? The reason why he introduced such a clause, opposed as he is to any constraint on freedom, is that the assembly was conceived in the first place as a substitute for the person of the Secretary of State, without the slightest idea of its being an ordinary democratic body holding the Executive to account. On the contrary, it was conceived as an Executive organ. That is a confusion which the removal of the clause, much though that may do, will not entirely remove.

Mr. Evans

We are trying to be as helpful as we can to the Minister, and my hon. Friend's contribution followed exactly that line. In many respects, we understand why the clause was included; my hon. Friend hit the nail on the head.

I was interested to hear what the Minister said about the Secretary of State's intentions. If I remember rightly, he said that the Secretary of State would never want to gag Members of the Assembly or anyone else, but I remember what happened in the referendum campaign, when the hon. Members for Ogmore (Sir R. Powell) and for Blaenau Gwent (Mr. Smith), who were opposed to devolution, were gagged. They were prevented from making a full and free contribution to the debate. There were all sorts of threats, including a controversial dialogue between the hon. Member for Blaenau Gwent and the Secretary of State.

We will put that to one side and say that a line has been drawn in the sand and that Ministers have had a revelation. The clause is to be taken away, as the hon. Member for Crewe and Nantwich suggested. The amendment would achieve that, and allow the Minister and his Department to consider carefully the privileges of Members of the Assembly.

The hon. Member for Ogmore suggested that the confusion about what rights and privileges Members of the Assembly are to have may explain why so few hon. Members want to go to Cardiff. I am a bit of a cynic, and I think that there may be all sorts of other reasons why Members of Parliament—with the notable exception of the hon. Member for Cardiff, West (Mr. Morgan)—do not want to play a part in the Welsh assembly.

Mr. Livsey

Will the hon. Gentleman give way?

Mr. Evans

No, because I intend to make a short contribution, and I know that other hon. Members want to speak. My right hon. Friend the Member for Devizes (Mr. Ancram) spoke yesterday about the Cabinet structure that will come into being in the Welsh assembly. The change that is in process, with the Cabinet structure and the Members of the Assembly underneath it, means that the clause is no longer needed. The problem is what will happen in future. The proposed structure is not a complete Cabinet structure, and powers may to and fro between the Cabinet and the assembly. We therefore need to know exactly what the relationship will be. The Minister may remember the quacking dog and barking duck. The imprecise nature of the proposed Cabinet means that the Official Secrets Act may need to be reinvented.

We in this House all hold dearly our privilege of freedom of speech. We are here to speak up on behalf of our constituents and address any wrongs. We would be very aggrieved if we thought that we would be gagged in any way and prevented from being able to speak up properly. Yet clause 79, unamended, would have done just that.

The Minister mentioned "Your Right to Know". In the preface to that White Paper, the Prime Minister says: The Government is pledged to modernise British politics. We are committed to a comprehensive programme of constitutional reform. We believe it is right to decentralise power; to guarantee individual rights— and stresses— to open up Government". He continues: The traditional culture of secrecy will only be broken down by giving people in the United Kingdom the legal right to know. Clause 79 would have been completely against that.

The hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) spoke about article IX of the Bill of Rights; he made an interesting suggestion. Members of a Welsh assembly will not have exactly the same freedoms and privileges that we enjoy in the House of Commons.

Mr. Rowlands

Just to test the water, I wonder whether a resolution of the House simply saying that freedom of speech and debate in the procedure of a National Assembly for Wales ought not to be impeached would be sufficiently powerful, given that the House is the supreme court of Parliament.

Mr. Evans

I do not mind at all being the conduit of that message. It will be interesting to see whether the Minister is able to respond to that suggestion.

The debate has been very instructive. We know that there has been much controversy over the inclusion of clause 79. We are somewhat reassured by the Minister's saying that the Government are prepared to look again at the matter and table amendments in the House of Lords, but we need to know a little more about Welsh Office thinking. It has had four months to address the matter since the Bill, including clause 79, was presented. It is only because Opposition Members and Labour Back Benchers have kicked up a fuss that the Welsh Office ministerial team has been forced to think again. What assurances can the Minister give that the team will come up with the right solution for the Welsh assembly?

Mr. Rhodri Morgan (Cardiff, West)

We have been only partially reassured by the Minister's remarks. I have taken a considerable interest in this issue. I pay tribute to the hon. Member for Aldridge—Brownhills (Mr. Shepherd), who originally gave me material as a fellow member of the Select Committee on Public Administration, which I then circulated to all Welsh Members. I did not send it to any Conservative Members because none of them represents a Welsh constituency. I assumed that the Conservative party would have its own network. I am glad that Conservative Members have a copy of the hon. Gentleman's informative material. He probably gave it to me before he disappeared to Canada because he thought that if he sent it to all Welsh Members they would dismiss it as material from a Conservative Member. As a Welsh Member, I was able to suggest that the material was of considerable interest.

The material is fundamental to the Welsh assembly's ability to work and the way in which its Members will be able to scrutinise what is being done in the name of the people of Wales, who elected them. If any parliamentary assembly cannot scrutinise what the Government of the day—if that is what one wants to call the Executive of the Welsh assembly—are doing, it is not able to carry out its fundamental duty. Clearly, there will be times when the Welsh assembly acts in an executive capacity, and times when it scrutinises. It cannot scrutinise the Executive unless its Members have the right to free speech conferred by the 1688 Bill of Rights.

It is not stated that article IX of the Bill of Rights applies to the Welsh assembly; we have assumed—perhaps too comfortably—that it will apply anyway. There are cases of people in Commonwealth Parliaments being accused of disclosing material. I think that a Member of the Canadian Parliament was accused of disclosing in a speech official secrets relating to where uranium was stored in Canada. He took the case—presumably—to the Judicial Committee of the Privy Council, and it was declared that article IX had supremacy over the Canadian official secrets Act. He was told that he was in the clear because he was carrying out his duty as a Member of Parliament.

We just hope that article IX applies to the Welsh assembly. Perhaps we should consider whether it should be stated that it applies. If there is no need to include it in the Bill, why is there a need to include the Official Secrets Act 1989, which would apply even if the assembly reverts to a committee system? It is not sufficient for the Minister to say that the Official Secrets Act clearly applies to Ministers because they carry out ministerial roles and that, if the powers of the Secretary of State for Wales are transferred to the Welsh assembly, the same duties not to disclose information under the Official Secrets Act are also transferred to all 60 Members of the Welsh assembly.

Not all the Secretary of State's obligations and responsibilities are automatically transferred to the Welsh assembly. For instance, not all 60 Members can turn up at No. 10 Downing street at 9 o'clock every Wednesday morning and say, "Hello Tony, we have turned up for the Cabinet meeting." They will not have one 60th of a little red box. The package of duties and responsibilities of the Secretary of State for Wales transfer to the Welsh assembly only as far as common sense dictates.

It is noticeable that the powers, duties and responsibilities of the Secretary of State for Scotland are transferred to the 129 Members of the Scottish Parliament, yet I can find no reference in the Scotland Bill to the Official Secrets Act applying to any Member of the

Scottish Parliament, Ministers or anybody else. There is reference to the promissory oath and the oath of allegiance—also, coincidentally in clause 79 of the Scotland Bill.

I ask the Minister to strengthen his assurances to recast the contents of clause 79. We want the principle behind it to disappear from the Bill. Perhaps something needs to be inserted about oaths, along the lines of the Scotland Bill. If I am wrong about there being no reference to the Official Secrets Act in the Scotland Bill, I would be happy to be corrected. There is no reason why we need it in the Government of Wales Bill. It is not the detail of clause 79 that is wrong but its fundamental principle. It restricts freedom of speech and the ability to carry out a primary role of scrutiny that any parliamentary assembly must have if it is to be taken seriously by the electors.

Mr. Gareth Thomas (Clwyd, West)

I agree with the sentiments expressed by the hon. Member for Rochford and Southend, East (Sir T. Taylor) in his very good-natured and cogent speech. His remarks were echoed by my hon. Friend the Member for Cardiff, West (Mr. Morgan).

In the light of the Government's programme of constitutional reform, which includes the very important freedom of information legislation, which will give the public a statutory right to know, and the Human Rights Bill, clause 79 is entirely incongruous, and something must be done about it. I am pleased that the Minister has given assurances. Clearly, a great deal of work has to be done to strike the correct balance between the right of individual Members of the Welsh assembly to scrutinise and the public interest in ensuring security of information.

Public security requires on occasion that the Official Secrets Act bites. I am pleased that the Minister has said that an amendment will be moved in the other place. It is an interesting fact that had the Human Rights Bill that is now going through Parliament been in force, it is likely that the Secretary of State would have had to declare to the House that nothing in the Bill was incompatible with the European convention on human rights. Clause 79 is incongruous and more work needs to be done.

Sir Teddy Taylor

In the light of the clear assurance given by the Minister, for which we are grateful, I have confidence that, in view of the strong feelings expressed by hon. Members on both sides of the House, something will be done, I will with reluctance—

It being Seven o'clock, MR. DEPUTY SPEAKER, pursuant to the Order [15 January] and the Resolution [25 March], put forthwith the Question already proposed from the Chair.

Amendment negatived.

MR. DEPUTY SPEAKER then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.

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