THE OFFICIAL SECRETS ACTS

HL Deb 26 June 1978 vol 394 cc12-23

3.5 p.m.

Lord WIGODER rose to call attention to the need to replace the Official Secrets Acts by a measure to put the burden on public authorities to justify withholding information; and to move for Papers. The noble Lord said: My Lords, those of your Lordships who find the wording of this Motion familiar will recognise that it is taken verbatim from a specific pledge to legislate contained in the last Labour Party Manifesto, issued in October 1974. That pledge was, no doubt, successful in obtaining a certain number of votes for the Labour Party at that Election; it is a pledge that has not been honoured. Whether that thereby makes the Labour Party's Manifesto a breach of the Trade Descriptions Act is a rather nice point of law upon which I need not perhaps embark. Therefore, it is clear that the Government have run into very real difficulties on this problem, and the purpose of this debate this afternoon is to see whether the collective experience of Members of your Lordships' House can help to contribute towards solving those difficulties and facilitating early legislation.

There have been a few rather tentative steps along the road since the days when that Manifesto was issued. In July 1977 a memorandum was issued by the Head of the Civil Service asking those who worked under him to be more forthcoming in the production of official information. In November 1977 there was a Government promise to be more ready to publish background material. It will come as no surprise to your Lordships to know that there is a White Paper on the way. The White Paper has been imminent now for many, many months; as each day goes by it no doubt becomes more imminent. It may be that the noble Lord, Lord Harris of Greenwich, will be able to tell us when we can actually expect its arrival. That is not a satisfactory record on a topic which my noble friends on these Benches regard as one of extreme importance.

The position appears to be this. First, as your Lordships will know, the Official Secrets Acts were passed during one afternoon in 1911, at a time of grave international crisis. They were rushed through both Houses in, I think, record time. It is hardly surprising that ever since they have given rise to considerable difficulties.

This afternoon I am not concerned with Section 1 of the principal Act, which deals with acts which prejudice the safety of the State. That is really aimed at espionage. Its scope has perhaps been a little extended. For example, your Lordships may remember that some gentlemen belonging to an organisation called the Committee of One Hundred were successfully prosecuted under that section because they planned to lie down on an airfield in front of some American nuclear-carrying aeroplanes as a protest and a political demonstration. I doubt whether that section was meant to cover that sort of action and it may be that in time it will be necessary to look at it with care and see to what extent it can usefully be reformed.

The real nub of the problem, as your Lordships know, lies in Section 2 of the Official Secrets Act, which deals with the unauthorised disclosure by a civil servant of any official information. It deals with those who receive it and those who subsequently transmit it. It makes them liable to heavy criminal penalties. There are two objections to that section. The first objection is that it is far too wide in its application. It has often been called a "catch-all" section. It applies in theory to every piece of official information, of however trivial a variety. It means, for example, that the Press are in peril of prosecution under that section if they choose to reveal the colour of the carpet in the Minister's office. It is an insult to those people in this country who are seeking to report freely the activities of Government that they should be liable even in theory to prosecutions under a section as wide as that.

There is of course a second problem about that section which is perhaps not so generally recognised, which is that, so far as those who subsequently transmit the information—not the original civil servants—are concerned, the construction of the section is in extreme doubt. Your Lordships will no doubt remember the case where the Sunday Telegraph were prosecuted some years ago over a report relating to Biafra. In the course of that case, Mr. Jeremy Hutchinson, as he then was—we shall have the pleasure of welcoming him into your Lordships' House next week—and I stood side by side and argued for some three days before the trial judge as to what precisely the construction of the section was. It so happened that all the defendants were acquitted. There was therefore no need for a ruling from the Court of Appeal or the Appellate Committee of your Lordships' House on the section.

However, in the result, the apparently wide ambit of the section, combined with real doubt as to its precise meaning, has led to Section 2 becoming almost entirely inoperative and almost entirely inoperable. For example, in the lifetime of the present Government, there has been only one prosecution brought under that section. There are, I know, three others pending at the moment, but they are cases where there are also charges under Section 1, the more serious section, and perhaps this consideration does not apply. The position, therefore, is that there is at the moment a section on the Statute Book which is totally ineffective.

The first matter that I desire to stress to your Lordships is that in calling for a reform of that section to make it more realistic and more effective, we must recognise that any reform, however liberally intended, is in practice going to be more restrictive and not less restrictive than the present position, because it will mean that there is an Act which can apply as against an Act which is inoperable. It is for that reason that, in calling for a reform of Section 2 of the Official Secrets Act, we on these Benches regard it as absolutely essential that at the same time the whole question of the access by members of the public to official Government information should be dealt with either in the same Statute or in a complementary one.

Reforming Section 2 is in itself perhaps not now a particularly controversial matter. The aim must obviously be first that the law should henceforth be clear, which it is not; secondly, that the application of the criminal law in this field should be reduced to a sensible minimum. I believe that there is a wide measure of agreement now for the general proposition that was put forward by the committee presided over by my noble friend Lord Franks, which came to the conclusion, in a sentence, that the criminal law should only be invoked in certain limited circumstances where there was the wilful disclosure, or receipt, or transmission of correctly classified information in certain very limited spheres: defence and foreign policy is obviously one; law enforcement is obviously another.

Information which has been entrusted by individuals in confidence to the Government, or by companies in confidence to the Government, which is of a sensitive commercial nature is, I think, obviously a third category of such information. Certain classes of Cabinet documents require protection. This, I think, is not in dispute. The Franks Committee recommended further that certain sensitive information which if disclosed might affect the currency or the reserves ought similarly to be protected. I know that the Government have indicated that they do not agree with the Franks Committee on that last matter. There is perhaps scope for second thoughts so far as that is concerned, because it may be that there are few things that can cause more damage to this country these days than the unauthorised premature disclosure of classified information which might lead to a drain on our currency reserves.

Those are all matters which are broadly those which the Franks Committee recommended might usefully and properly be made the subject of a revised Section 2. Your Lordships will have noticed that I mentioned that of course a prosecution would only be brought, and the criminal law invoked, in those limited categories and where the disclosure was of correctly classified information. That raises at once a real difficulty, and one faces up to it as a real difficulty, as to who is to determine in the event of a prosecution whether the document has been correctly classified.

The Franks Committee suggested that it might be left to the Minister to do that by way of certificate. We on these Benches would not find that an acceptable solution, for the obvious reason that it would appear to be making the Minister, in a sense, the judge of his own cause. Other suggestions have been put forward. The Conservative Party in the other place, in a debate on this subject, suggested a Committee of the Privy Council. We suggest that, in order to ensure more democratic involvement in the process, it might be left to a Select Committee perhaps of Members of both Houses of Parliament who would be able to keep an eye on the legislation and determine whether classifications were being correctly made.

As an alternative it might be left to the courts to decide whether the document had been correctly classified. But I am bound to say I find that not easy to regard as a justiciable issue. I doubt whether it is one which the courts would welcome. It may be that it is desirable to find some method by which that process can be determined in a democratic way before the case goes to the courts on that issue; that is, to as whether or not the document was correctly classified.

I believe that those are now recognised broadly and generally as being the proper limits of the criminal law in this field. I think there would be no difficulty in presenting a revised, reformed Section 2 which would cover those limited categories in that way. But, as I indicated earlier, we would regard it as absolutely essential that, if that were to be done, there was at the same time to be considered the whole question of the right of the public of access to other public records, other Government information. As soon as one mentions that problem one realises that there is a genuine clash of interest, and I think it does no good to the discussion for either side to deride the other. There is a genuine desire among many people for many purposes to obtain access to public records and public information. There is, equally, a perfectly legitimate desire inside the Civil Service for a degree of confidentiality.

We all know that our Civil Service is a most remarkably confident, efficient and uncorrupt body. Its efficiency depends very largely on its ability to deal in complete frankness in its documents with those to whom the observations are being made; but it must follow that the degree of frankness is bound to be in inverse proportion to the degree of publicity and the extent of the circulation which the document will obtain. It must follow that, if unlimited access is given to every Government document of every kind, the result will be that either the documents will be tepid, lukewarm affairs of on value to anybody, or else the documents will not exist and everything will be done over a telephone, and there will be no record of what has transpired.

When I talk about the public interest, it is perhaps desirable to try to see just what is meant by the public interest in terms of official information. We in the Liberal Party would regard it in this way: we try to ensure that our democratic processes work efficiently; we try to ensure that ordinary people have the chance to participate, if they wish, in the processes of Government; we regard it as important that those who wish should be able to comment on policy decisions in the light of intelligent, well-informed discussion; and we believe it is equally important that they should he able to discuss policy matters before the policy is announced, because we all know of the grave difficulty that arises of attempting to change the Government's mind once a provisional view has been expressed.

We therefore believe that in order that our democratic process can function more efficiently, it is essential there should be a public right of access to a vast variety of information. Perhaps the simplest and most effective list of that sort of information was given in the appendix to the Outer Circle Policy Unit's document on the Official Information Act, which has been one of the more constructive contributions to this discussion.

They had in mind—and I support what they said—documents of this nature: reports of commissions of inquiries or committees, councils or other bodies established by the Government outside the ordinary departmental structure; reports by valuers; reports of specialist investigatory bodies within the departmental structure; environmental impact studies; statistical surveys; feasibility and technical studies; reports on product tests; studies, surveys reports and factual documents compiled by departmental officers; reports of courts and boards of inquiry, including the evidence that is given, except of course where that evidence was given in camera.

That is the kind of information we have in mind as being essential if people in this country who want to play a full part in participating in the processes of discussion are able to fulfil their role properly. I stress, and I want to make this perfectly clear, that I am not suggesting there should be access by the public to a vast mass of internal departmental or interdepartmental memoranda; I do not believe that would carry the matter any further. It is documents of the kind I have indicated to which it is important that there should be access.

The view which we on these Benches take has not entirely commended itself to some of the wilder extremists who have leaped on to this bandwagon. We have nothing in common with those whose patron saints are Messrs. Agee and Hosenball. We have nothing in common with those who, because there is a trial of three people pending, are able to determine without knowing evidence that they are clearly innocent and the prosecution is utterly outrageous; we have nothing in common with those who, in a fit of extreme childishness—and that may be a rather charitable word for it—thought it was clever to disclose the name of Colonel B; we have nothing in common with the Scientologists;, who are clearly out to grind their own axe in this particular matter; and we have nothing in common with that group of Socialist workers inside the National Union of Journalists who are anxious to get at every conceivable document, however confidential, simply for the purpose of stirring up trouble and, if possible, for the purpose of bringing Government grinding to a halt. The Liberal aim is to open up Government so that there can be assistance and free discussion in the formulaton of policy in the belief that that will make Government more accountable, more responsible and more efficient.

I dealt with the question of criminal sanctions in a very limited sphere. So far as the rest of the documents are concerned which can properly be kept confidential, we believe that can be left to the ordinary processes of Civil Service discipline. Therefore the only other question I want to raise with your Lordships this afternoon is this: how is access by the public to the type of document I have indicated, the official information which is of real help, to be achieved? There are ways by which this has been done abroad, but perhaps we should be a little careful before assuming too readily that what is done in quite different constitutional systems is applicable to this country.

There is the American system under which there is a vast, highly expensive procedure for cataloguing every conceivable document so that the public might look at the lists and decide what document to obtain. I doubt whether we could afford that in this country. There is the Swedish system, which I think we should much prefer, by which citizens are entitled to ask for any particular document they may wish and that must he disclosed unless it comes within certain statutory grounds of exemption which the Civil Service or the Minister may claim. That raises the practical difficulty as to how one asks for a document if one does not know it exists, bearing in mind the need for some form of cataloguing. Perhaps the noble Lord, Lord Harris of Greenwich could help as to the extent to which there is already in this country a catalogue or index of the principal types of documents I have indicated which might make the Swedish system adaptable and suitable for this country.

There is the proposal, just put forward by a distinguished committee of a distinguished body known as Justice, that there should be a code of practice which would enable this information to be made available to the public. Obviously that is worthy of consideration, but perhaps it smacks just a little of being a concession by the Civil Service to the right of people to know what is going on, and it may be that it would be better embodied in legislation.

There is, finally, the possibility that there might be a statute relating to official information which would set out the specific categories of information available—it could be added to as experience showed that it was being successful—and that would be, we should hope, policed by a Parliamentary Commissioner, either a new one or one of the existing ones if it were possible for him to take on that burden. That would be, we hope, under the general supervision of the Parliamentary Select Committee that I indicated previously.

Those are matters for consideration as to how this end is to be achieved. What is not a matter for consideration, in our view, is whether any longer there is a need to reform the Official Secrets Act and a need to provide information of this kind to members of the public. We regard this as a very high priority indeed if we are to seek to build up a really free society in this country. My Lords, I beg to move for Papers.

3.28 p.m.

Lord WINDLESHAM

My Lords, I approach the subject of today's debate with an open and, I confess, still somewhat undecided mind. I found the speech of the noble Lord, Lord Wigoder, a thoughtful and informative introduction to this topical issue. The Official Secrets Act has been regarded for very many years as both a clumsy and inappropriate way of safeguarding official information. It originally went on the Statute Book 67 years ago against a background of espionage and extreme concern over national security. It passed through Parliament, as Lord Wigoder said, in a single day and with little debate in either House. It has remained ever since, reinforcing the tradition of secrecy and non-disclosure which has been a feature of the Whitehall scene throughout the period.

As the activities of Government have increased, the policies and decisions of Government have come to affect a wider and wider range of the affairs of its citizens; and it is worth noting that economic policies and decisions have become as important and sensitive today as were defence policies and considerations in the period when this Statute first became law before the First War.

At the same time a vast quantity of detailed information, much of it of a confidential nature about the conduct of private individuals, is accumulated by the State. Side by side with this process of development—and fortunately for the health of a democractic society—has been the emergence of a multiplicity of interest groups often trying to get at information which Government would prefer not to release, while the power of the Press has been considerably strengthened by the advent of television.

The objections to the Official Secrets Act are many, but I single out three. The first I shall refer to only shortly because the noble Lord, Lord Wigoder, has already made the same point. It is this: the Official Secrets Act is far too wide in its application, in that it covers the unauthorised disclosure of any information which comes to a Crown servant in the course of his work, irrespective of its confidentiality. The second objection is that it does not distinguish between those Crown servants, including Ministers, judges, senior civil servants who can themselves authorise disclosure, and hundreds of thousands of officials inside and outside the Civil Service who have either a strictly limited discretion or none at all. For example, in the recent debate on this matter in the House of Commons an instance was quoted of a young student working as a temporary gardener at Hampton Court. She was required to sign a form incorporating Section 2 of the Official Secrets Act and to do so, presumably, as a condition of employment. These forms, which have no legal force and never have had, have been the subject of much criticism, and it is disappointing to find they are still so widely and unnecessarily used.

The Act is also objectionable in that it applies criminal sanctions not only to the person who discloses the information but also to the person who receives it. The picture of a journalist in the dock has never accorded well with the idea of a free Press and this has been one of the most contentious aspects. Behind these three objections—and there are many others which no doubt we shall hear in the course of the debate—there is the fact that the Official Secrets Act encourages, and in a sense legitimises, a prevailing atmosphere of secrecy which is no longer in accord with the spirit of the times. It is thus hardly surprising that all of the three main political Parties, plus an official Departmental Committee under the chairmanship of Lord Franks which reported in 1972, and a host of special interest groups, including Justice, have urged reforms in this field.

Incidentally, reform would have come many years ago as the situation would have become untenable had the letter of the law been observed; but for one requirement—and I do not recall that this was mentioned by the noble Lord, Lord Wigoder, when he dealt with the point in his speech. The consent of the Attorney-General is necessary before any prosecution is launched. Experience has shown that successive holders of this office—looking, as they must, to a public interest wider than that of the Government of which they are a member—have used this discretion sparingly, and they have been wise to do so. As a result, there have been few prosecutions under Section 2 of the Official Secrets Act. The total between 1945 and 1971, for example, amounted to no more than 23 cases in all.

If, therefore, the case is male out, as I believe it is, for the repeal of Section 2 of the Official Secrets Act, the question then arises of what should take its place. Some absolutists might reply, "Nothing". The necessary degree of secrecy for the defence of the realm is contained in Section 1, while the Civil Service and other public bodies have their own disciplinary procedures. Others see a continuing place for the application of the law in this field, including criminal sanctions, but only to protect what is of real importance. Some people lock to the model of the Freedom of Information legislation in the United States, which is relatively new legislation seeking to give effect to the right of the citizen to know what is being done in his name by the Administration and by other agencies of Government. There are differing views on the effectiveness of this legislation in the first few years in which it has been in operation.

Another approach is that contained in a report published last week by Justice which was summarised in an article in yesterday's Observer by its principal author, Mr. Anthony Lincoln. Here the proposal is for a non-statutory code of practice to be adopted throughout the public service, backed by the authority of Parliament, and with cases of dispute referred to the Ombudsman.

All of these are interesting proposals and each of them is worth debating. But, in the end, I am inclined to come down in favour of the approach Advocated in the report by the noble Lord, Lord Franks. This recommended rim legislative provisions to take the place of Section 2 which would be more limited in range and more certain in application. Only clearly defined categories of information would be protected and the mere receipt of information would no longer be an offence. The consent of the Attorney-General or, in certain instances, the Director of Public Prosecutions would still be required and the penalties were spelt out. One of the main objections that have been raised to this approach concerns the practical difficulties inherent in classification and where in controversial cases a particular set of circumstances might fall on one side of the line or the other. Partly for this reason some interests, including sections of the Press—although not Independent Television, which gave evidence to Franks in favour of a change—would prefer to see no change at all, on the grounds that it might make things even worse. Conservative arguments of this sort have been expressed also by Parliamentarians. For example, one distinguished former Minister gave evidence to Franks in December 1971 in these words which I quote from the Franks Committee Report, vol. IV, page 188: if I were asked to be a member of this Committee I would think a long time before I could draw up a schedule which would enable me to say, 'This falls on one side and this falls on the other side'. I think, therefore, if it is not improper for me to say this, unless you are capable of drawing up such a schedule and being pretty certain that it will work better than the existing Section 2 does, I would be inclined to leave it alone as it is, rely upon the prescience of all those concerned, the sense of responsibility of others, and the fact that the press watch the situation extremely closely. I have a feeling—but I will read what you conclude with very great interest—that in the end you may draw up a different distinction and a different line, but it will not be any better than the existing one, and I see no reason why one should just alter things for the sake of it". The name of the witness was the right honourable James Callaghan, M.P. Perhaps we can see in this statement of opinion one of the reasons for the Government's hesitation and delay in bringing forward proposals in the form of a White Paper. Nevertheless, I believe that the debate in this House today will show, as did the recent debate in the House of Commons, a degree of unanimity in all parts of the House for some action to be taken. And let it he soon.