§ 3.35 p.m.
§ The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)My Lords, with the leave of the House I will now repeat a Statement which is being made in another place by my right honourable friend the Home Secretary. The Statement is as follows:
"The Queen's Speech at the opening of this Session stated that legislative proposals would be brought forward for the reform of Section 2.
"The White Paper published today sets out with some precision the substance of the legislation with which, building on the work done by Lord Franks and his Committee, the Government propose to replace Section 2.
"The House will recall that I gave a broad indication of the Government's thinking in the Statement I made on 22nd November, 1976. I said then that we had concluded that Section 2 should be replaced by an Official Information Act on the broad lines recommended by the Franks Committee but that there should be certain departures from the Committee's conclusions.
330 "In particular, there should be no criminal sanctions for the disclosure of information in the economic sphere or for Cabinet and Cabinet Committee documents irrespective of their content and security classification. We also proposed to create a separate protected category for information relating to security and intelligence. And we proposed to cover more defence and international relations information than Franks had recommended, although we now conclude that the test for criminal sanctions in these fields should—as Franks recommended—be the test of causing serious injury rather than being merely prejudicial to the nation.
"We also make clear in the White Paper that we intend to extend the protection which the Franks Committee envisaged for confidences of the citizen. We propose not just to protect any such information given to the Government but to protect confidential information held by the Government about private individuals and concerns, from whatever source it has come.
"I shall not attempt now to deal with all the other detailed proposals in the White Paper but I would draw the attention of the House to an important safeguard we intend to introduce, additional to those in the Franks report and which relates to the classification of information.
"This is that it will be for the Attorney-General (or in Scotland, the Lord Advocate) to authorise the entering in evidence of a certificate by the departmental Minister concerned that information which is the subject of a prosecution was properly classified at the time of its disclosure. This is set out in paragraph 24 of the White Paper.
"Over the years, Section 2 had attracted much criticism because of its 'catch-all' character. The legislation we propose will answer that criticism, and the White Paper itself will allow a discussion to take place before legislation, and not, as with Section 2, after legislation had been introduced.
"With regard to open government in general, it is the view of the Government that reform of Section 2 is not only a much needed improvement of the criminal law but a necessary preliminary 331 to greater openness. Our prime concern so far has been to increase the flow of information to the public in the manner announced by the Prime Minister on 24th November, 1976. Much more information is now being released to the public, who are thus better informed than ever before. Indeed, the working assumption is now that, once Ministers have reached their conclusion on a particular major policy study, associated factual and analytical material will be published. In addition, the Government have continued to keep generally abreast with the experience in open government overseas.
"With regard to legislation to put the Government under a statutory duty to disclose information on demand, we have not yet examined in depth how overseas experience might be applied in our own constitutional system. This is a complex matter, and it will need to be studied carefully. As the White Paper states, we shall initiate a more detailed study than has so far been possible of overseas experience and its relevance to our own constitutional system, in order to see what further action, whether by means of legislation or by non-statutory amendments, may be desirable, and we shall announce our conclusions from this study in due course."
§ My Lords, that ends the Statement.
§ 3.39 p.m.
§ Lord RAWLINSON of EWELLMy Lords, may I express thanks to the noble Lord the Minister for repeating the Statement which has been made in another place by his right honourable friend the Home Secretary. I suspect that over the next two weeks quite a few Statements or White Papers may flutter down like snowflakes. I do not know whether or not they will have anything to do with what may be going to happen in October, but I would remind the noble Lord that it was in 1974 that the Government announced that they were going to take these steps. Now, here we are, at the very end of this Parliament, and all we have is a White Paper. We have not any legislation, and we do not know when we shall have any legislation.
332 Having said that, may I say that broadly I would agree with the proposals made by the noble Lord's right honourable friend of replacing Section 2—which did very much depend upon the good sense of Law Officers refraining from prosecuting in certain cases—by the proposals made by the Franks Committee. On the matter of the classification which is made by a Secretary of State, does he believe that the Secretary of State should be the person who, when a prosecution is pending, should decide whether that particular document or information which has been alleged to have been disclosed was so classified? Would it not be far better to have an independent body to do that? Has he noted that there is a proposal by some of my honourable and right honourable friends that this should be done by two Privy Counsellors presided over by a Lord of Appeal in Ordinary as a matter of giving a conclusive certificate to take it away from the ministerial responsibility and then it is merely a matter for a court to decide whether there has been a disclosure? Would he not think that better than leaving it to the Minister?
Thirdly, is it right that there should be no criminal sanctions for disclosure of Cabinet documents irrespective of their content and security classification? Open Government, yes. But is it really sensible that there should be no criminal sanctions where a document of that kind has been removed from the Cabinet and sold or displayed? Is that really right? I would suggest that perhaps that is a little too free and easy—even in the free and easy days in which we live, and especially as we approach a General Election. I should like to thank the noble Lord for repeating the Statement made by the Home Secretary in another place.
§ Lord WIGODERMy Lords, from these Benches we should like to thank the noble Lord for repeating the Statement which is a very short summary of the White Paper issued today. I am not sure whether I ought to refer to the White Paper. The copy T obtained this morning has the word "Confidential" printed on it at the top left-hand corner. These proposals in relation to Section 2 of the Act would result in a clear, specific and enforceable Section 2. These proposals would thus lead to the replacement of the 333 existing Section 2 which, by reason both of its comprehensive nature and of the legal doubts about its meaning, is for practical purposes inoperative and inoperable. In the result any replacement of the existing Section 2, by itself, would inevitably lead to a more repressive situation than the situation which exists today and would lead to greater restrictions on the freedom of the Press and the freedom of journalists and of people to know what is going on in Government circles than is the case in the present situation. At present there is a wholly unenforceable section which can be safely and totally ignored, and which is totally ignored on all sides. For that reason, may I say that we on these Benches would not be able to support reforms of this nature unless they were coupled at the same time with freedom-of-information legislation.
I should like, in those circumstances, to ask the noble Lord, Lord Harris, one or two questions about this matter. First, does he agree that there was, in 1974, a specific Election pledge by the Labour Party to produce freedom-of-information legislation? If so, does he agree that that pledge has now been broken? If that is so, will he be good enough to indicate what are the circumstances which have arisen since 1974 which have caused the Government to find it impossible to act on their Election pledge? If there are no circumstances of any substance that have arisen since 1974, is not the inference unavoidable that that Election pledge was included as a result of wholly inadequate research by the Labour Party and clearly because of its value as a vote catcher?
So far as freedom-of-information legislation is concerned, would the noble Lord agree that the experience, particularly of the United States and of Sweden and the Scandinavian countries generally, is crucially important in this matter? Can he say how it comes about that, four years after the last Election pledge was given, the Government are able to stand up and say that they have not yet examined in depth how overseas experience might be applied in our Constitutional system. Would the noble Lord not agree with me that many bodies with far less resources than the Government—and I am afraid that I have to include the Liberal Party among that description—have 334 carried out a great deal of work and research in this matter? Why have the Government not done so, and when are they going to complete their research?
§ 3.45 p.m.
§ Lord HARRIS of GREENWICHMy Lords, I am much obliged to the two noble Lords for some of the things that they have said. If I may deal first with the noble and learned Lord, Lord Rawlinson, before coming to the noble Lord, Lord Wigoder, I note what he said about the flood of documents that are about to appear in both Houses of Parliament in the next few weeks for some reason. I do not understand what the reason may be. Nevertheless, I take note of what the noble and learned Lord said. He referred at one point to classification by a Secretary of State. As I am sure he will accept on reflection, it is rare for the Secretary of State himself to initiate a decision so far as the classification of a particular document is concerned. It is done from time to time but, in my experience, it is extremely rare. More often the document is classified by officials and then comes to a Secretary of State.
This brings me to a point he touched on which was also raised by the noble Viscount, Lord Colville of Culross, during our own discussions on this matter a few weeks ago. That is the proposal of Sir Michael Havers and his colleagues that there should be a Committee of Three Wise Men (as I suppose we could describe them) to review the question of classification. On this matter, we agree with Franks that the assessment of the damage which a particular disclosure could cause is essentially a matter for Government responsibility and that only the responsible Minister can carry out this particular function. As I have already pointed out in the Statement, we have concluded that the Attorney-General should provide an independent scrutiny of the Minister's decision and we regard this as a more appropriate way of dealing with this particular question. I note what the noble and learned Lord said about Cabinet documents. Of course, one could debate this matter. I do not agree with him, but it is possible to take two views. We came to the conclusion that it is not appropriate to deal with this particular problem in the way advocated by the noble and learned Lord.
335 As to the noble Lord, Lord Wigoder, I take his point completely so far as the present law is concerned. This, again, is a question which we debated recently. The thrust of his argument, as I understand it—and I think I understand it—is that the present section is largely unenforceable, and therefore it is possible to deploy quite a formidable case for leaving the law as it is. If you replace the unenforceable section with a new section or Act which is enforceable, it may bite in future in a way that it does not at the moment. This brings me to the question of whether it is right to amend Section 2 of the 1911 Act. We do not think it is particularly sensible to have something on the Statute Book which many regard as unenforceable. We think that in some particular areas it is highly desirable to have restrictions which are enforceable. Therefore, I am afraid that we do not come to the same conclusion as does the noble Lord on this question.
On the last point raised, which was the question of the Labour Party's Election Manifesto, this is dealt with (as the noble Lord will see) in paragraph 48 of the White Paper, where we acknowledge that our proposals do not go as far as the General Election Manifesto in 1974, for the reasons which we set out. We considered this matter carefully and discussed the particular point raised by the noble Lord: the Freedom of Information Act in the United States. We are obviously aware of a certain amount of American experience and we want to go into this matter a great deal further. There is undoubtedly a substantial body of criticism by a number of people in the United States not by all means black hearted reactionaries, who take the view that one of the problems associated with the Freedom of Information Act in the United States is the growth of a Freedom of Information Act bureaucracy, which has not substantially improved the position for the individual citizen.
§ 3.51 p.m.
§ Lord WIGGMy Lords, the noble and learned Lord, Lord Rawlinson of Ewell, forecast that in the next fortnight we are going to get White Papers and Statements like snowflakes. I am not sure that July is the time of the year when snow falls; but assuming that his meaning has a legitimacy, may I inquire from the Leader 336 of the House whether when Statements are made this is part of a private debate conducted outside the normal rules of order by the three Front Bench spokesmen? If so, I will resume my seat. If I am required to play the game according to one set of rules and there is another set of rules for them, I shall also resume my seat.
If on the other hand, all have to abide by the same set of rules, may I respectfully ask this question of the Minister? When he met the point made by the noble Lord, Lord Rawlinson of Ewell, about classification, he posed a problem as if it was subject to arbitrary decision, either by a Secretary of State or by civil servants. Is it not true, and the fact—and I do not want to probe or reveal anything that is confidential in a communication from the Minister to the noble Lord, Lord Wigoder—that the formula for classification is very clearly one that is laid down and is binding upon a civil servant and upon a Minister?
While it is not applied in an arbitrary way, there are rules which have been carefully worked out. In a very humble capacity—which had nothing to do with snowstorms or shovelling up snow, and I am clear on the point—I played a minor part in seeing that the rules were not so silly as they otherwise would have been, but there are rules.
§ The LORD PRIVY SEAL (Lord Peart)My Lords, may I intervene concerning what my noble friend has said? I refer to the Companion to the Standing Orders of the House of Lords on public business, page 68:
Ministerial statements are made for the information of the House, and, although brief comments and questions for clarification are allowed, such statements should riot be made the occasion for an immediate debate, unless the House so order".
§ Lord WIGGMy Lords, I take it that the brief comments may apply equally to me as to Front Bench spokesmen. That is a concession that I am pleased to hear about.
§ Lord PEARTMy Lords, except that obviously spokesmen for the Opposition, and we also accept traditionally the Liberal Party since I have been here, are allowed a little latitude. They must not go on too long but may ask questions.
§ Lord WIGGMy Lords, it is not the length but the range that they cover. I do not mind them doing that. I am extremely interested in what they have to say. All I want to know is whether I am in the act. I do not want to play—not rugby; I cannot play rugby—baseball if they are playing rounders, or vice versa.
§ Lord PEARTMy Lords, I am sorry my noble friend never played rugby; but he will always be in the act.
§ 3.55 p.m.
§ Lord SHINWELLMy Lords, I take note of what my noble friend the Leader of the House has said, and I accept that what he has said is consistent with the traditions of the House, as laid down by various committees on procedure, et cetera. But I object to the method all the same. Therefore I support my noble friend Lord Wigg in his condemnation of this privilege that is at the mouth of Front Benchers of both Oppositions. The statement has been frequently made that we are all equal in this House. How often has that been stated? However, when it comes to a matter of this sort, there is no equality at all. The Leaders of both Oppositions are allowed to embark on a discussion. It is obvious that they have been able to anchor themselves—if I may use that expression—to the White Paper and have been notified that the Statement would be made. We are not notified. It seems wrong, but that is not the point.
What concerns me very much is that in the absence of the White Paper, which I have not been able to see—no doubt if I go to the Printed Paper Office I shall get a copy of it—I want to know about this talk of freedom of information, sanctions and all the rest of it. There has been a great deal of talk and I take note of what the Front Bench speaker of the Opposition has said regarding pledges about freedom of information, and then when it comes to implementation there is always some apology for not being able to proceed with implementation. How often are we faced with this lack of conclusion? There is a great deal of talk, but implementation is another matter.
I have been concerned for many years about the fact that an important decision of a Cabinet—and I ask noble Lords to 338 accept a hypothetical illustration though it could be attached to something which took place—may be taken but there can be no disclosure. Nothing can be divulged. There are rumours all over the place. The Press media are enjoying themselves criticising and lambasting in the most devastating fashion the persons concerned, even members of the Cabinet—
§ Lord DERWENTMy Lords, I am sorry to interrupt the noble Lord. May I ask the noble Lord the Leader of the House whether comments made on a Government Statement should refer solely to the Statement and not to the procedure of the House?
§ Lord PEARTMy Lords, the noble Lord is quite right. I hope that my noble friend will understand that he has gone on a little long. If he has any worries about the procedure of the House, he is entitled to submit the proposals to the Procedure Committee.
§ Lord SHINWELLMy Lords, the noble Lord opposite is quite correct to rebuke me. I am completely out of order. That is precisely what the trouble is about. That is why my noble friend Lord Wigg has raised the matter. I only wanted to know whether a decision taken by the Cabinet can be disclosed if what occurred affects the honour, integrity and political stature of some member of the Cabinet. Is that matter referred to in the White Paper? If it is, I think it is a matter subject for debate. If it is not, we shall have to get another White Paper.
§ Lord HARRIS of GREENWICHMy Lords, the general question of Cabinet documents, as I indicated in the Statement, is dealt with in the White Paper. As I said in reply to the noble and learned Lord, Lord Rawlinson of Ewell, it is perfectly possible to take a number of views on this question. We have come to the conclusion that it is not right that this matter should be dealt with within the terms of the new legislation which will replace Section 2 of the 1911 Act.