§ The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)My Lords, with the leave of the House, I shall now repeat a Statement being made in another place by my right honourable friend the Home Secretary. The Statement is as follows:
"I will, with permission, Mr. Speaker, make a Statement on the Government's intentions on the reform of section 2 of the Official Secrets Act 1911. This section, which makes it a criminal offence to disclose official information without authority, has for some time been regarded as too broad in its scope—it has been described as a 'catch-all'—and there has been uncertainty about its interpretation and 1731 enforcement. The Government have concluded that this section should be replaced by an Official Information Act on the broad lines recommended by the Franks Committee. The Committee, whose membership included representatives of Parliament—including myself—and the media, and who presented a unanimous report, recommended that the sanctions of the criminal law should be strictly limited in their application. It is, of course, with the criminal law that we are here concerned, and not the practices and rules about disclosure of information in the public service. The normal sanctions of the rules of conduct against disclosure of official information will continue to apply.
"The Franks Committee recommended that the criminal law should apply to disclosure of information relating to foreign affairs, defence and internal security, and currency and the reserves when that information is classified 'Secret' or above or in the case of certain defence information classified as 'Defence—Confidential:' and also to the disclosure of Cabinet documents, confidences of the citizen and certain information in the field of law and order, such as information that would facilitate crime. Information in these three last categories was to be protected regardless of any security classification.
"The Government accept the Committee's general approach to the problem, but in considering the categories of information that ought to be protected by the criminal law we think it right to draw a clearer distinction between home and economic policy on the one hand and security and intelligence, defence and international relations on the other. The unauthorised disclosure of any official information is wrong because it is unauthorised. But in the domestic field it will generally result in embarrassment to the Government of the day and not in serious damage to the national interest. In the fields of security and intelligence, defence and international relations, on the other hand, such damage may well result.
"In the economic field the Government have reached the conclusion that 1732 a criminal sanction is not justified. It is relevant that the Franks Report was prepared at a time of fixed exchange rates. In any case it would not in the Government's view be appropriate to distinguish between currency and the reserves and, for example, domestic interest rates and monetary and fiscal policies. Faced with a realistic choice between applying criminal sanctions to a wider economic category and the exclusion of economic information from their ambit, it seems right to us that the criminal offence should not extend to economic information.
"The Government also propose to depart from the Franks recommendation that there should be a criminal sanction for the disclosure of Cabinet and Cabinet Committee documents, irrespective of their content and security classification. The Committee rested the case for inclusion of this category on the need to safeguard the collective responsibility of the Cabinet. The doctrine of collective responsibility is fundamental to our system of government, and the Government totally accept that the documents of the Cabinet and its Committees deserve special protection. They do not, however, consider that that protection should consist of applying criminal sanctions to the disclosure of documents irrespective of their content and classification. The bulk of Cabinet and Cabinet Committee documents deal with domestic affairs. The protection of these documents is a matter basically of trust and good sense among colleagues. It is also a matter of ensuring that the principles and special procedures for distributing and handling Cabinet documents are properly observed and improved where necessary; and in that connection the report of Lord Houghton's Committee on Cabinet document security will be published shortly and the Government's conclusions on it made known at the same time.
"The Government have therefore concluded that Cabinet and Cabinet Committee documents should be protected by criminal sanctions only when by their content and security classification they fall into one of the other categories so protected.
"The Government accept the need to protect by criminal sanctions the 1733 Franks Committee's proposed categories of confidence of the citizen and certain law and order information, as well as that of disclosure for gain (to which the report of the Royal Commission on Standards of Conduct in Public Life is relevant). These depend upon special considerations for which we believe that the Committee has made a case.
"In the fields of security and intelligence, defence and international relations, the Government have concluded that some rearrangement and extension of the Franks categories is required. Information relating to security and intelligence matters is deserving of the highest protection whether or not it is classified. The Government propose therefore that this should form a separate category. In the defence field the Franks Committee recommended that confidential information relating to military weapons and equipment should be given the special marking of 'Defence—Confidential' and be protected by criminal sanctions. The Government have concluded that confidential information of a sensitive and potentially damaging kind goes rather wider than this in both the defence and international fields. It extends to certain areas of defence policy and strategy and of international relations where unauthorised disclosure would be prejudicial to British interests, to relations with a foreign Government or to the safety of British citizens. The Government therefore propose to extend this Franks concept to become 'Defence and International—Confidential' and to define it somewhat more widely than Franks.
"The Government believe that their conclusion represents a system more liberal than that proposed by the Franks Committee, but one which secures the highest degree of protection for information whose disclosure may cause serious harm to the interests of the nation. Legislation on this basis will be introduced as soon as is practicable, but it cannot be during the coming Session. Although much detail remains to be worked out, I thought it right to inform the House of the Government's broad intentions."
§ 3.48 p.m.
§ Lord HAILSHAM of SAINT MARYLEBONEWell, my Lords, there is scarcely a dull moment, is there? I am sure that the House is deeply grateful to the noble Lord, Lord Harris of Greenwich, for retailing this Statement to us. The Government on this occasion are not exactly racing into improvident legislation. We heard, and probably it is the main thing that emerges from this document, that we are not going to legislate next Session. I suppose the Government are too busy putting ship repairing back into the Bill we have been discussing this morning. But on the other hand, one recollects that the report to which this is a commentary was signed, so far as I remember, in August 1972. Therefore the Government, and indeed their predecessor, have had ample time to consider what they were going to do about it.
I think it is obvious that after the Sunday Telegraph prosecution something had to be done, and on the main recommendation of the Franks Report that Section 2 of the Official Secrets Act should be replaced by a narrower and more specific set of provisions to be known as the Official Information Act, I think that there will probably be very little dispute in either House of Parliament, and certainly none between the Parties. Nor do I think that there will be much complaint about the priority given by the Government to defence and foreign affairs security information. But are the Government quite right in saying that economic information is so unimportant nowadays?
The Franks Committee reported that the Official Information Act should apply to official information relating to any
… proposals, negotiations or decisions connected with alterations in the value of sterling or relating to the reserves, including their extent or any movement or threat to them".Unless I am mistaken, the only reference I find to that recommendation in what the noble Lord just read is the sentence:In the economic field, the Government have reached the conclusion that a criminal sanction is not justified".They back that up by saying that of course in the old days of Franks, many years ago, there were such things as fixed foreign exchanges.Are the Government really satisfied that if, for instance, one disclosed information which would affect the value of 1735 sterling, in these so much more enlightened times that would not be something which should not be governed by a criminal sanction? Are they really sure that is right? Does their new-found liberalism carry them that length? What about Budget secrets? That is economic information and I always thought that the documents relating to it were protected by a very high degree of secrecy.
One is left with the conclusion that the Government would have been very much better, as they have proceeded in this leisurely fashion—a leisurely fashion for which I must accept my own measure of responsibility when I was a member of their predecessor—if they had produced a White Paper on the subject being much more precise and detailed in the arguments which they approached. I wonder whether, regarding the Committee's recommendation about discussions with the media, such discussions have taken place at any time in the last four years, before this announcement was made. If so, with whom were the discussions held and what was the result of them? At any rate, we shall at some time during the next 12 months have time to discuss the matter, as there will be no legislation, so I will not detain the House with any further comment.
§ 3.53 p.m.
§ Lord WIGODERMy Lords, we on these Benches welcome the fact that at long last the Government have adopted the view of Mr. Justice Caulfield in the Sunday Telegraph case that it is time that Section 2 of the 1911 Act should be pensioned off. It was an absurd situation under which, if that Act were interpreted strictly, a civil servant and a journalist would be committing a serious offence if they exchanged information about the colour of the carpet in the civil servant's room or about the time at which he took his tea break; and we welcome very much the fact that a somewhat more realistic view will be taken in future as to what information is important and what is trivial.
I have three queries to raise about the Statement which has been repeated by the noble Lord, Lord Harris of Greenwich. My first query, which has already been raised by the noble and learned Lord, Lord Hailsham of Saint Marylebone, is 1736 whether on reflection it may not appear that economic information may not be at least as important, and indeed in some circumstances even more important, than military information and should not come within the provisions of the new Bill when it is drafted.
Secondly, the question of the classification of Government documents, because a great deal of trouble arises at the moment because of the inevitable tendency of civil servants to classify their documents in grades of confidentiality several degrees higher than are really necessary. Indeed, I remember well that in the Sunday Telegraph case it emerged that the very document giving instructions to the Civil Service on how to classify documents was itself classified as confidential, and the civil servant who was giving evidence was therefore reluctant to inform the court of its details. Does Lord Harris accept the finding of the Committee presided over by my noble and learned friend Lord Franks that the whole question of classification should be looked at with care, that the civil servant's view of the correct degree of classification should not be accepted as final and should be subject to the certificate of the Minister in an appropriate case to the effect that the classification had been properly carried out?
Thirdly, may I ask Lord Harris whether he agrees with the view of the Franks Committee that the mere receipt by a person of classified information should not in itself be an offence under the new Bill, whenever it is prepared? Lord Hailsham pointed out that the Franks Committee reported in September 1972. The Government appear to be adopting the attitude of Saint Augustine, who prayed in Latin in the words:
Give me chastity and continence, but do not give it yet.May I ask the noble Lord to consider very carefully whether it might not be possible for the Government to introduce a measure to reform the present Act in the immediate future during this coming Session? Would it not perhaps be an appropriate Bill to introduce into your Lordships' House while we are doing nothing but awaiting the return of the Aircraft and Shipbuilding Bill?
§ 3.55 p.m.
§ Lord HARRIS of GREENWICHMy Lords, I am grateful for what the noble 1737 and learned Lord, Lord Hailsham, and the noble Lord, Lord Wigoder, have said. It is sometimes rather difficult to give pleasure to your Lordships' House. There has been a constant stream of reproaches to this Government and—and the noble Lord, Lord Carrington, would no doubt agree—to the previous Government that there has been over-hasty legislation and far too much of it. Undoubtedly, it has been the case in this matter that both the previous and the present Governments have taken some time to reflect before coming forward with proposals.
I must say at the outset that it will be quite impossible to fit this into the programme for next year's legislative timetable. There is a substantial programme of legislation that will be set before Parliament in the gracious Speech and I must make it clear, as did my right honourable friend in his Statement in the other place, that we could not possibly fit an important measure of this sort into the programme for the next Session of Parliament.
The noble Lord, Lord Wigoder, and the noble and learned Lord, Lord Hailsham, both referred to the Sunday Telegraph case, where Mr. Justice Caulfield made a number of very critical references to Section 2 of the Official Secrets Act 1911. Indeed, that is why the Franks Committee was set up and why I have made the Statement that I have made today. The noble and learned Lord, Lord Hailsham, and the noble Lord, Lord Wigoder, both asked whether it was not the fact that economic information should be protected, and suggested that there should be some fairly harsh restriction, with breaches being dealt with rather more seriously than the Government were proposing. Certainly, I do not for a moment suggest that disclosure of economic information cannot be damaging. Of course it can. The question is whether there should be a criminal sanction. It is the Government's view that there should not be a criminal sanction.
On the question raised by the noble and learned Lord as to what is the position if there is disclosure of a Budget secret, I believe that the answer to that is that there are other disagreeable consequences if there are disclosures of Budget secrets and that the criminal law is not necessarily the best way of dealing with that problem. 1738 The noble Lord, Lord Wigoder, put the point—which was covered by the Franks Committee—about whether the mere receipt of information should be a criminal offence. It is our view that it should not be so, and that will be part of our proposals.
§ Lord CARR of HADLEYMy Lords, may I press the noble Lord to go a little further into the possibility of having a White Paper on this subject, as suggested by the noble and learned Lord, Lord Hailsham? These are complicated matters, as I remember well from some discussions that I had to have many years ago about the matter at the Home Office. It seems to me that a lot of points could be thought about and discussed with advantage before we get to the point of legislation and that a White Paper might therefore be very useful.
§ Lord HARRIS of GREENWICHMy Lords, I am obliged to the noble Lord and I shall certainly discuss that matter with my right honourable friend.
§ Lord GORE-BOOTHMy Lords, may I supplement what the other speakers have said about the economic aspects of this matter? Clearly, we cannot expect the noble Lord, Lord Harris, to produce a detailed reply, but it may help him if I suggest that there will have to be some kind of borderline between international affairs that are deemed to be economic, and international and economic affairs that may touch upon international affairs yet not be international. It does not seem possible to say simply "economic" under one system and "international" under the other. There really are very delicate questions which affect our international relations and which are substantially economic, and somebody will have to decide, not only ad hoc but also on definitions.
§ Lord ROBBINSMy Lords, while completely endorsing what the noble Lord, Lord Gore-Booth, has said, I should like to suggest that even as regards the domestic scene there are lines which should be drawn. I imagine that most of us, certainly most members of my profession, will welcome the increased elbowroom for the discussion of economic affairs in general. But it is very easy to imagine partial disclosures which enable people to make large sums of money, 1739 which I suggest should still be the subject of criminal prosecution. I think that that could be enlarged upon a great deal, but the time now is not appropriate.
§ Lord HARRIS of GREENWICHMy Lords, I think it is perfectly right that there are going to be a number of difficult dividing lines. The noble Lord, Lord Gore-Booth, is quite right; I take the point he has just made. But of course this is a matter which can be discussed during the Committee stage of the Bill, which will be an important measure for that reason and for the reason which the noble Lord has just given. I welcome, too, the general welcome given by the noble Lord because I think it is important to try to move out of the area of criminal law so far as discussion in the areas he has just mentioned is concerned.
§ Lord CLITHEROEMy Lords, will the noble Lord be so good as to tell your Lordships whether any change at all is contemplated in the 30-year rule?
§ Lord HARRIS of GREENWICHMy Lords, this is not covered by the Official Secrets Act.
§ Lord BOWDENMy Lords, when we consider this Bill would it not be possible to link it with what in many countries is called the "Right to Know Act" or something equivalent, so that in general the ordinary citizen has an access to the files of the Civil Service if they bear upon his own private affairs, as a matter of right instead of as a matter of privilege? I suggest this so that something could be done to remove what I have always felt to be the obsessive security and the obsessive sense of secrecy which envelops all the operations of the Civil Service.
§ Lord HARRIS of GREENWICHMy Lords, I think that that matter goes substantially wider than the Statement I have made this afternoon.
§ 4.2 p.m.
§ Lord PEARTMy Lords, I beg to move that this House do now adjourn until 5.15 p.m. when a Royal Commission for Prorogation is expected. My Lords, after all the disagreement and hard words of the last few weeks I am glad to be able to take this opportunity of saying something with which I am sure noble Lords 1740 in all parts of the House will agree. The period since the Summer Recess has been one of the hardest that the House has ever gone through. I feel that we owe a very real debt of gratitude to all those in the House who have worked so patiently for our benefit. I hope, therefore, that I have the support of the whole House in saying "Thank you" to the staff. First, I should mention the staff of the Parliament Office and I should like to make particular mention of the Public Bill Office. This is only because I know that the burden on them has been even greater than on every-one else.
Secondly, I should mention the Hansard staff, who have coped unflaggingly with a very heavy task. Thirdly, there are the staff of the Refreshment Department who have fed and watered us and kept up our spirits. We have also imposed greatly on them and relied far more than we should on their devotion to duty to keep the Refreshment Department working. Next I can thank the Doorkeepers and the rest of Black Rod's staff who have kept the watches of the night with us.
Last, but not least, I should like to add a mention of my own secretarial staff in the Leader's Office. One of the best known and prettiest members of that office is leaving at the end of this Session, and I know that the House will miss her very much and wish her well. To all the staff and to all your Lordships I can say that I hope that the next few weeks will be rather quieter than the last few.
§ Moved, That this House do now adjourn until 5.15 p.m.—(Lord Peart.)
§ Lord CARRINGTONMy Lords, all of your Lordships would join with the Leader of the House in that tribute, and all of your Lordships, wherever you sit, will look to the Leader of the House to see that nothing as awful as the past eight weeks will ever happen again. I think that a certain tribute is also due to your Lordships on all sides of the House; we have kept our tempers and we have been courteous and polite, whatever our disagreements may have been. Only very rarely have there been flashes of temper, which in the circumstances were only too understandable. My Lords, both Front Benches have had to put up with a great deal of hard work and do a lot, and I think we ought to acknowledge that.
1741 Of course I agree with what the noble Lord has said about all the various categories of people whom he has mentioned: the Table, that has to listen to the interminable argument; the Official Reporters, who have to take down the interminable argument; the Doorkeepers and the Custodians, and those behind the scenes who work so hard; and not least, as the noble Lord has said, the Refreshment Department. Where would we have been without Miss Wilson and the Refreshment Department? If I may pick out, invidiously, one particular person, where would we have been without the Bishops' Bar? The cheerful and efficient dispenser of spirits there, who has have kept our spirits up and, incidentally, enabled them to go down as well, if your Lordships follow me, has really been invaluable to us in these last few weeks. My Lords, I think that we in this House are particularly fortunate in the people who work here with us. Whatever the circumstances, we are always greeted with a cheerfulness, a courtesy and a kindness which we have absolutely no right to expect but always get.
§ Lord BYERSMy Lords, we on these Benches would like to support what has been said by the two noble Lords who have preceded me. The whole House is of course extremely indebted to all the members of the staff who have worked so hard and so long in recent weeks. I only hope—and I think I echo the words of the noble Lord, Lord Carrington—that it will not become part of our Parliamentary life. That this should be the pattern for the period at the end of every Session is too much to bear.
My Lords, I do not know whether we have had to recruit a considerable number of new staff or whether the burden of the last few weeks has taken its mental toll, but this morning I was handed my Order Paper by a very courteous Doorkeeper. He took a good look at me and said, "It is very good to see you again, my Lord; we do not get that pleasure very often nowadays". I am still trying to work out with which particular Liberal backwoodsman he confused me! My Lords, we wish to support the Motion which has been moved by the noble Lord the Leader of the House.
§ House adjourned during pleasure until
§ 5.15 p.m.
§ House resumed.