*VISCOUNT ESHERhad the following Question on the Paper: "To ask the Lord Chancellor whether written communications on official business of State between the Sovereign and members of the Cabinet, the Viceroy of India, and British Ambassadors to Foreign Courts, as well as between members of the Cabinet themselves, are protected under the Official Secrets Act, or are in any way safeguarded against unauthorised publication."
The noble Viscount said: Before putting the Question which stands in my name I should like to say a few words in explanation. Certain literary work in which I have been engaged during the past two years has led me to examine documents which have brought home to me, as I think it would to your Lordships, the grave risks which are run from the unauthorised disclosure of private political papers. I have no wish to exaggerate or to curtail in any way reasonable freedom of authors to write biographies or of the public to read them, nor have I any intention of referring to any specific documents, and 1 only mention them in order that your Lordships may see that my Question is not based upon theory or conjecture, but upon solid facts, which I must ask your Lordships to take from me are serious enough to warrant it. It must be within the recollection of your Lordships that the tranquillity of Europe has been disturbed before now by an expression or a phrase from some eminent statesman or monarch. I am ashamed to mention so well-known an episode as the famous Berlin telegram of 12th June, 1870, the effect of which was to bring about the war between France and Germany. That proceeding was calculated, and intentionally and carefully designed, as has since appeared, for the specific purpose of bringing about a war between France and Germany. It is not 717 to that species of document that this Question refers. But I want your Lordships to consider whether a similar effect might not be produced by an accidental— to use a comprehensive word—publication of a document which was never intended to see the light. I do not wish to weary your Lordships with illustrations, but I will take two periods within 20 years of each other, when the tension between this country and a great foreign Power was extreme, to explain the object of this Question. We were perhaps never much nearer to a war with our great neighbour across the Channel than after the attempt upon the life of the Emperor of the French, on 14th January, 1858, and nothing but the most guarded language on the part of the statesmen who at that time were responsible for the government of this country saved us from the calamity of a war. So ultra-careful was Lord Palmers-ton, so pusillanimous was he from the point of view of certain persons, that he was made to pay the penalty commonly exacted from any Minister who fails to re-pond to the hot fit of the people of this country when they are in a passion, and, as your Lordships will remember, at the first push of his political opponents his Government fell. The question I would ask the noble Lord upon the Woolsack to consider is this: what would have happened at that moment if one of the letters which passed freely between Lord Palmerston and Lord Clarendon, who was at that time Secretary of State for Foreign Affairs, or Lord Cowley, who was Ambassador in Paris, written with the natural want of reserve with which one colleague addresses another, or one of the daily letters which passed between the Sovereign and her Minister, written with all the outspoken frankness which characterised the relations between the Queen and her Ministers, had fallen into the enterprising hands of some newspaper correspondent? And again, I would like to refer to a period 20 years Later, to two highly precarious dates in the year 1878, when war between this country and Russia appeared inevitable. On 25th January in that year the late; Lord Carnarvon resigned, and on 28th March Lord Derby followed his example. 1 would leave to your Lordships' imagination the nature of the correspondence which must inevitably have passed in those days—the natural reflections upon 718 the motives of the late Emperor of Russia, upon the attitude of the present Emperor of Austria, and the strong and dangerous light thrown upon the intentions in certain eventualities of the British Government. It only seemed to require an imprudence—a letter left upon a table, or in a railway carriage, a dishonest servant, an unscrupulous editor— and nothing could have averted the calamity of war. This period was specially interesting, because only three months later, the House will recollect, the Anglo-Russian agreement, a secret document of the first importance, was stolen from the Foreign Office and published in an evening paper, and it was mainly this publication which ten years later brought about the passing of the Official Secrets Act through Parliament. But the risks and dangers do not stop there. When Lord Melbourne died correspondence with his Sovereign and his colleagues, known to be of great importance, could not be found for many months. He was accused, quite falsely as it transpired, of having surrendered it into hands thought to be untrustworthy. There is another source of danger. It is quite true that the relatives and executors of deceased statesmen have hitherto shown great care and reserve. But in the last ten years a great change has come about in the ideas of the public as to the time which might properly elapse between the death of a statesman and the publication of his papers. The correspondence between Lord Grey and King William IV. was not published for thirty years after the passage of the Reform "Bill, to which it had reference. The correspondence of Sir Robert Peel, who died in 1851, was not published until somewhere about 1881. The "Lives" of Lord Dalhousie, Lord Durham, and Sidney Herbert have only recently been published, and they deal with events half a century old. A relative of my own, who was Belgian Minister in London for many years, and who, owing to the intimate connection between the late King Leopold and her late Majesty Queen Victoria, died in possession of very private documents, left the strictest injunctions that his papers were not even to be examined or touched for thirty years after his death. But that is not the modern practice. I do not complain or suggest criticism, and everyone must have welcomed the admirable biographies 719 of Mr. Gladstone, Lord Randolph Churchill, and Lord Granville, which have appeared in recent years, and which are all of them free, thanks to the political experience as well as to the skill of their authors, from political indiscretions of any kind. But that considerable risk is involved no one who has ever had the onerous duty of preparing important correspondence for publication can doubt. Inexperience, carelessness, the natural love for an exciting episode, quite apart from malignancy and the spirit of mischief, might easily, by the publication of some inconvenient document, create an incident and a complication in the public life of the nation which all men would regret. Your Lordships are aware of the importance attached to a Privy Councillor's oath, and to the mystery which properly surrounds the deliberations of the Cabinet. Does it not seem somewhat inconsistent to attribute so much value to the spoken word, and to safeguard it under specially sacred conditions, and yet at the same time to take no adequate precautions against the risks which invariably attend placing secret and confidential matters upon paper? I am aware of the nature and extent of the laws of copyright. They are, as has been so often demonstrated, wholly inadequate for the purpose I have been indicating to the House. Letters improperly published can be suppressed, but meanwhile the mischief is done. A notable case, which occasioned great pain to a member of your Lordships' House, will be in the minds of many. That was a private misfortune, and private persons have their remedy under the existing law. But what is the remedy of the Sovereign if his trust is abused, and what is the remedy of the nation if its highest interests are jeopardised? If there is no remedy under the law as it stands, I would like the Lord Chancellor to consider whether, as the necessity was admitted in 1888, when the Official Secrets Act was passed, to protect by heavy penalties printed documents of State, similar protection should not be extended to the correspondence of those persons mentioned in my Question.
THE LORD CHANCELLORMy Lords, I anticipated that I would have to answer a dry question of law, but the noble Viscount has certainly made a most interesting statement, and one 720 touching upon questions of the very highest public importance. If he will permit me, I will first answer the Question on the Paper which relates to the law as it is, and will afterwards make a few observations in regard to other interesting subjects which the noble Lord dealt with. The documents specified in the Question have no protection beyond that which is extended to ordinary private letters, except in so far as the Official Secrets Act affects them. The protection extended to ordinary private letters is that arising from the law of copyright, which leaves in the writer of the letter, or it may be in his employer or official superior, the property in the letter itself, and enables him to ask for the protection of a Court of law to prevent its publication against his will. There is a right of secrecy in an ordinary private letter which would be protected as a right of property in the Courts. It is quite manifest that for all the purposes indicated by the noble Viscount the law of copyright is wholly inadequate to afford any shelter. Then comes the Official Secrets Act. It is not an Act of Parliament which I should hold up as an example of skilful or even accurate drafting—I was almost going to say that I would scarcely admit its title to grammatical accuracy. The Official Secrets Act affects documents of the kind in two ways. In the first place certain documents cannot be made public when they have relation to fortresses, arsenals, factories, dockyards and camps; but that is a very limited protection. The Act also provides that a person who has obtained documents by means of his holding office under the Crown, or as a contractor under an obligation of secrecy, can be prosecuted if the communication of these documents is against public interest, and the person discloses them corruptly or contrary to his official duties. That also is a very limited protection, and is practically unavailable in the cases suggested by the noble Viscount. Therefore I am obliged to say that under the law as it at present exists the dangers which have been pointed out by the noble Viscount do exist, and are not adequately precluded by any existing law in the degree of their importance and of the risk attaching to their publication. My noble friend has indicated the kind of dangers which might arise. The statement in substance amounted to this, that at a time when public feeling is inflamed there may be 721 most disastrous results from the undue or careless publication of some State documents. Well, I think that is so. No doubt very great discretion has been observed ordinarily by public men and by the Press. Indeed, it is wonderful to me that important documents which come from Departments or are used in the Cabinet are not more frequently disclosed. Of course in some crises of history their disclosure might be followed by the most serious consequences. I am bound to say, and I do not see why we should not say it, or why we should be afraid to say it, that some of the recent developments of a section of the Press of this country do not hold out the expectation that there will be the same reserve or the same fairness in the future as generally there has been in the past. For my own part, I believe it is well worthy of our consideration whether some further safeguard should be imposed, without in the slightest degree restricting any honest freedom—such honest, patriotic freedom as I feel sure would be fairly exercised by the great majority of the Press of this country. This is a subject on which it would be highly improper for me to pronounce any opinion without consideration by myself and by others; but I think there is a good deal of ground for taking into consideration the very important subject which has been raised in so interesting a way by my noble friend.