§ 4.9 p.m.
§ Debate resumed.
§ Lord GOODMAN
My Lords, it is not altogether easy to return our concentration even to so important a domestic 34 matter as the one we were discussing before this Statement was made; but we must do so, and we can perhaps reflect with some contentment that our most intractable problems compare very favourably with the appalling situations which prevail elsewhere. That may be quite a healthy mood in which to continue our discussions.
The two previous speakers, in this debate have, if I may venture to say so without being patronising (if I may borrow a word from the Minister of State), made a very distinguished contribution to it. It is an exceptionally difficult matter, and it is one worthy of the best attention we can give to it. It is not a matter of exceptional urgency because, so far as the principal absurdities of the law are concerned, they have been healthily counteracted by the common sense of juries. This is an important consideration. It is sometimes unwise to leave it to the common sense of juries to correct the state of law which is inherently unsatisfactory. The Sunday Telegraph case demonstrated, as did a number of the cases which occurred previously in the general area of censorship, that twelve men can rectify very adequately some of the prejudices and built-in notions of people much wiser and holding more eminent positions who have arrived at settled conclusions not in consonance or consistent with public opinion of the moment. But you cannot leave that too long. First, you do not know how long you can rely upon the common sense of a jury and also you do not know how long a Government that has been defeated in this way will continue to lick its wounds. After a time, confidence is restored and some further absurdities are perpetrated.
What I would say about the Official Secrets Act is this. I agree with the noble Lord, Lord Wigoder, that what we are concerned with is Section 2 and not Section 1 of the Act. Section 1 has obviously assumed much greater importance as Section 2 has advanced further into the area of the absurd and the ludicrous. Section 1 becomes more imporant because today we could be totally dependent for our survival on being able to control the desemination of security information and classified information. In the days when the design of the crossbow was not perhaps an appallingly secret matter—and for a 35 long time we know that the more rudimentary long bow continued to prevail—it was not necessary to send to prison anyone who had travelled to France with an advance copy of the bow that we were going to use at Agincourt.
Section 1 was not then an especially important consideration; nor was it there, if I may venture to say so. But today, when we have atomic bombs and hydrogen bombs and when every kind of appalling device that mankind has thought out for his own destruction can come into existence by reason of treachery on the part of people, often well-intentioned people, as we know from some of the post-war cases, people moved by the highest motivation who fail to recognise that their principal obligation is to their own country—today, when these things can happen, Section 1 is of the greatest importance. I do not know whether it needs to be rectified or extended in any way; but I do not think that that is what we are discussing today.
Today we are discussing the absurd situation of Section 2 which, as has been said so rightly, is the section which allows a man to he prosecuted, at least theoretically, for divulging any information that has come his way in the course of his employment. That cannot be sensible; it cannot even be sane. As Lord Wigoder said, you can be prosecuted for divulging the colour of the carpet in your room or for making known something you heard on the telephone while someone was talking to his wife; you can be prosecuted for any triviality. It is the fact that the history of these prosecutions very often touches the ludicrous and the absurd. Some noble Lords may remember the Compton Mackenzie prosecution, and others the Sunday Telegraph case. I should declare an interest, an interest which shows me to be a person of singular altruism becasue I have occasionally earned an honest penny by being concerned with the defence in these cases. I had the privilege of retaining the noble Lord, Lord Wigoder, in the Sunday Telegraph case. I was concerned in the Richard Grossman case, where my firm acted for the publisher. In so far as Section 2 gets abolished, this cannot be of any advantage to me; it cannot be of any advantage to honest lawyers; but I do not think, important as their interests are, 36 that they are necessarily the supreme interest when the salus populi arises.
I venture to think that on this point I find myself in mild disagreement with Lord Wigoder. He said that there is no way of amending the Official Secrets Act without, in fact, making its bite more vigorous and more effective and making it a stronger instrument for censorship. But there is one way, of course: it is to abolish Section 2 entirely as far as it relates to criminal law. This is the major suggestion that I wish to make.
What is the vice of Section 2 at the moment? It is a very important social vice: that it interferes with important freedoms of expression. It inhibits the historian, it inhibits the newspaperman, it inhibits the journalist and the author. It leaves him in an appalling state of insecurity and uncertainty about what he can do. It has been rightly said that one of the most effective forms of censorship is uncertainty in the law. You could not have a better illustration of that than in relation to Section 2. What I want to suggest—and I do not put it forward as a positive solution that I have formed in my mind as necessarily right—is that in the current mood in the country, the general feeling that secrecy is something prevalent among Governments is a very unhealthy feeling. I do not believe it to be true; but a lot of young people believe it is true.
Undoubtedly there is an atmosphere in Government reminiscent of the mood of the man who in his house says, "Do not speak so loudly, the neighbours will hear!" This is the sort of psychological attitude that needs to be rectified. I do not think that you can start to amend this Act unless you decide what is going to be your philosophy; unless you decide what it is that you want to do. Many years ago, when I first became the Chairman of the Arts Council of Great Britain, I suggested to a meeting that we should admit the Press to our discussions. I cannot tell you with what horror this proposal was received. It would be quite impossible to do it, I was told in the firmest terms by the officials and the other members of the Council: that no one would speak his mind. I think we have progressed some distance since then. People are not inhibited from speaking their minds from a fear that other people will know what is in their minds, if there 37 is anything in them at all. I believe that the first approach to rectifying this situation is to ensure that we do not necessarily try to inhibit the spead of information in a belief that it will be injurious. Most of the information that people seek to protect can do no injury to anyone.
What we must remember, in amending this section, is that our purpose is not to protect individuals from awkward, inconvenient, embarrassing revelations about views that they have expressed. That is not what we are about to do; but genuinely to protect a public interest. Of course, it is embarrassing to be reminded of advice or of views which one gave at one time. No one who has practised as a lawyer can fail to know what an embarrassment it would be to be reminded of previous advice given. I have never heard of anyone protected from having advice that he had uttered to a client or patient published in public terms. I do not think that we should give consideration to this.
There is a very interesting passage in the judgment of the Lord Chief Justice in the Crossman case. The interesting part of that case was the fact that it demonstrated with great force the total futility of Section 2 of the Official Secrets Act. The defendants in that case—and there is no secret about it; it emerges in a book about the case—were all strongly advised that they had no defence under the Official Secrets Act and that if the Official Secrets Act had been pleaded in the action against them, there was no defence available. But the Act was not used. Unkind people may say it was because it was a Cabinet Minister involved. Kinder people may say it was because it was regarded as being inappropriate to use a sledgehammer to crack a nut. But, whatever the reason, why is there need to retain an Act of which we make no use of any kind when a serious issue arises? Judgment in that case demonstrated beyond peradventure that that Act is of no use in those circumstances. One cannot conceive of the Act being used against a Cabinet Minister or an important civil servant in circumstances where it was an innocent revelation, made with deliberation because it was thought that the public ought to know something.
What the case shows is the urgent necessity of revising the whole of the law 38 on the censorship area; because the law is an appalling muddle and mess when you think of the area of possible censorship that arises in these matters. You have the Official Secrets Act, Section 2, which prohibits your saying anything about anything if you happen to have learned it from an official source; there is the law of copyright which prohibits the printing of a document unless you are certain that you enjoy the copyright to any substantial extent; and the rights of quotations are extremely limited; there is the law of confidentiality. I would invite even the noble and learned Lord who sits on the Woolsack to tell us what the law of confidentiality says at this moment or to what extent it can operate.
There was an interesting case recently which also indicated the social mood in which we are moving and which also indicated the necessity of bringing the law into line with it. This was the case, I think, a few weeks ago. You will find it in the 1971, 1 All England Reports, page 700-odd. It was a case where two "pop" singers sought to restrain their previous agent from selling articles about their activities. One pop singer's name was Jones and the other was Humperdinck. I do not think that he was the composer of the famous opera. Whoever he was, the fact remains that these two gentlemen had employed an agent to publicise their affairs. The agent was employed by them and he had signed a letter undertaking that he would not disclose any information about their affairs. Then he proceeded to write four articles, I believe for the Daily Mirror. After three had been published, the unfortunate principals awoke to the fact that what he was saying was not wholly complimentary. They sought to enjoin the fourth article from being published.
My Lords, you will be astonished to hear that in the present mood tilt!), failed. The Court of Appeal—Lord Denning's judgment—held that as the gentleman had been employed to publicise them, these people could not complain whatever the publicity he gave them—at least to the point of getting an injunction. So they totally failed to get an injunction, but they were left with a remedy in damages which, as any lawyer will know, is a very dubious remedy in such circumstances. That reflects the present social mood. I do not say that the judgment was right; 39 I do not say that it was wrong. I say that it is a contemporary judgment indicating how people feel about things today. If we are going to introduce new laws, we ought to introduce them in key with how people think about things today.
In his judgment in the Crossman case, the Lord Chief Justice made some very pertinent observations. He made it clear, for instance, that under the existing law he would regard genuine Cabinet secrets that were still current as open to protection by the law of confidentiality. So it is not necessary to have an Official Secrets Act to use this. He also made it clear that civil servants were not entitled to the protection of that Act: that it was inappropriate to seek to protect civil servants on the basis that they had given advice that was now being brought to light.
May I say this: I have absolutely no animus against civil servants; I have a great many friends who are civil servants. I have worked with them in a great variety of areas but I cannot for the life of me see why it should be necessary to have a criminal Act to drag somebody into the dock at the Old Bailey because someone else divulges the advice that a civil servant has given. The remedy here is the same as in ordinary private life: when you select your employer, select wisely. When you select your employee, select wisely.
I have spent a lifetime dealing with people's secrets and divulging them to my own employees. I cannot think of a single instance where any has been disclosed, although some of my employees could have made very substantial sums of money by divulging information to improper sources. This is a question of how people behave. If you are unwise enough—if I may say so—to work for anyone as distinguished, amiable, nice and intelligent as Dick Crossman, you should take the precaution of saying nothing until you are out of the room. If you are unwise enough to employ a private secretary on some immensely confidential activity, make sure that he is a gentleman who will not divulge your secrets however much he may disapprove of what you are doing. These are the solutions in this matter. The solution is not to put people into the dock; but the solution is to consider how far this matter can be dealt with by the civil law.
40 I believe that a change in the civil law is very necessary. The Law Commission, if they have not already done so—and they work so arduously and assiduously that no-one can say what they may or may not have done at any moment of time—should consider the whole question of the obligations of confidentiality in contractual employment. It is an extremely important question: how far may a bank manager divulge the balance in the bank; how far may a secretary divulge what you have said in a letter? It is not necessary to make use of the appallingly ferocious weapon of criminal prosecution in order to secure an adequacy of protection.
This is obviously a debate in which a number of people want to speak, a debate which we have had interrupted, inevitably, by the awful matters that were discussed previously. I would conclude by saying that I think we are dealing with a matter which is important to the whole tenor and tone of our community at this moment. There is a feeling afoot that governments seek to protect information for the sake of protecting it and for the sake of preventing the embarrassment of individuals rather than for sake of the public good. It will be a very important matter to allay that fear and disabuse people of that idea, and to produce an Act which is in key with our present thinking.
§ 4.25 p.m.
§ Lord JACOBSON
My Lords, the House will be grateful to the noble Lord, Lord Wigoder, for giving us the opportunity to hold this debate. I can assure him that his speech will be welcomed by all who hold the freedom of the Press and the importance of the free flow of information at heart, and particularly by journalists inside and outside the House. Here perhaps I may declare an interest: I was, until my retirement three years ago, a journalist, mainly with the Daily Mirror group. I receive a pension from them; I am a member of the NUJ; and I still occasionally write some articles.
The Motion calls for the replacement of the Official Secrets Act by a measure to put the burden on public authorities to justify withholding information. This seems to me to be like trying to bell the cat, and it is in line with an undertaking as the noble Lord, Lord Wigoder, pointed out, in the Labour Party manifesto of 41 October 1974 which has not yet been met. I believe the Motion to be worthy of your Lordships' support. I see it as a step in the right direction. But only as a step. It would do some good if it were to be followed by other steps; but not if it were to obscure the ultimate objective.
That objective, in my opinion, is to secure the freest possible flow of information through an Official Information Act or an Access to Information Act, on the lines of those in Sweden, other Scandinavian countries and the United States. The Swedish freedom of the Press Act goes far beyond anything contemplated by the Government or in the terms of this Motion. It does not, for example, simply limit criminal penalties to disclosures of certain kinds of information. The Swedish Act provides a right which is legally enforceable for anyone to see Government information unless it falls within specific limited categories. The Swedish and American Acts both provide that the decisions as to whether the information falls within the limited exemptions from disclosures have to be made by impartial arbitrators, such as the Swedish Ombudsman or the Supreme Administrative Court.
My Lords, I do not believe that official information is going to be made freely available to the Press and the public simply because it is no offence to release it or because public authorities have to justify withholding it. Established conventions and practices, civil service discipline and secrecy, the desire of governments and Government Departments to withhold politically sensitive information for Party advantages, all these are too deep rooted for that to come about without some more clear-cut and specific legislation. There will always remain in the official mind the temptation to withhold information and try to justify the decision later, or hope that the information will become too out-of-date to be significant, or that the problem will just quietly fade away and be forgotten.
May I give an example of what I mean. Your Lordships may have read or heard about a remarkable book by a former civil servant, Mr. Leslie Chapman, or your Lordships may have seen one of the television programmes based on this book. Mr. Chapman was head of the Southern Region of the Property Services Agency, formerly the Ministry of Works. In this 42 job he succeeded in saving the taxpayer many millions of pounds in his region. But when he tried to get his methods adopted elsewhere in the agency, he ran up against a brick wall of indifference or downright hostility. Finally, he became fed up, resigned from the Civil Service and wrote this book.
His economies had come to the notice of the Public Accounts Committee and, in 1975, they called in Sir Robert Cox, the head of the Agency, and asked him why the economies made by Mr. Chapman had not been matched by other regions. Sir Robert's reply, to the effect that there were special factors in the Southern Region, was misleading and is now admitted to have been misleading. But although the Agency knew that they had misled the Public Accounts Committee by early 1977, the Committee were not told so until June 1978, a few days before the publication of Mr. Chapman's book and the subsequent disclosures in the television programmes.
If the question is now asked, "Why was Sir Robert's statement to the Public Accounts Committee incorrect?" it cannot be answered fully because the Official Secrets Act stands in the way. This particular cover-up was not totally successful because of the determination of one man, backed by some newspapers and broadcasters. But how many cover-ups have been successful? This we shall never know.
Before I retired, I was a newspaper executive for many years. I will not pretend that all newspaper editors spend their days in fear of the Official Secrets Act and spend sleepless nights because of the laws of defamation and contempt. But what worries me is that it is precisely those newspapers are that most concerned with thorough investigation, both national and provincial, and those broadcasters, too, who most consistently want to make a thorough job of investigation in the public interest, who encounter most obstruction from public authorities, from bureaucracy and the existing laws of defamation and contempt—particularly the law of contempt. One has only to remember the difficulties encountered by the Sunday Times in a long, brilliantly conducted and ultimately successful campaign on behalf of the thalidomide families to see what can occur in that field.
43 We had a debate on 26th January this year on the report of the Royal Commission on the Press, and I should like to say I am delighted that the Chairman of that Commission, my noble friend Lord McGregor of Durris, is speaking later today. That debate was also initiated by the noble Lord, Lord Wigoder. Some of us then urged the Government to give further consideration to the question of a freedom of information Act and also to get on with the reform of the laws of contempt and defamation. We were fortified by the fact that the Royal Commission and the Government had pushed in similar directions.
I must confess, with regret, that on that occasion I found the reply from the Government Front Bench disappointing. No blame, of course, attaches to my noble friend Lord Oram, who replied for the Government: he was bound by a negative departmental brief. I am sure he has the freedom of the Press at heart as much as any of us, but he could give no undertakings. That was five months ago and it is now nearly a year since the final report of the Royal Commission was published. All we have had from the Government so far is a discussion paper on contempt. It is more than three years since the reports of the Committees on Contempt and Defamation were published. I hope that my noble friend Lord Harris of Greenwich will be able to assure us of some progress when he speaks today. He was a journalist before his elevation to ministerial status. I hope he will remain a Minister for a long, long time ahead—certainly after October—but perhaps there will come a day when he wishes to revert to the profession of journalism and he will have made things a little easier for himself by anything that he can tell us today.
These are complex matters; they are both fundamental and urgent. As the noble Lord, Lord Goodman, said, there is a great deal in the mood of the country at the moment, particularly on the part of young people, who have become very impatient about what they regard as the growing secrecy of our public life. These things bear on the very basis of the open society on which we pride ourselves so much. I must confess that I sometimes wonder whether this Government, or any Government in recent years, have really 44 taken seriously the need to reduce excessive secrecy in our public, administrative and political life to which the Fulton Committee drew our attention 10 full years ago. Successive Prime Ministers have promised us more open Government. Mr. Heath did so; Sir Harold Wilson did so; and Mr. Callaghan has done so. But when we come to examine the record to date I fear that all we have to look at is a pretty blank sheet. It is therefore with no great optimism that I support the Motion moved by the noble Lord today, but I hope that I may be proved wrong.
§ 4.34 p.m.
The Earl of HALSBURY
My Lords, I speak as a scientist rather than a lawyer and I am not going to discuss the legalities of this matter, which are rather outside my competence. However, I should like to tell your Lordships, with permission, how I managed to overcome the obstacles in the way of getting the history of the first computers in this country declassified. It is quite a story. A computer-like object was conceived by Charles Babbage, a Cambridge mathematician, about 150 years ago, but he was unable to reduce it to practice because he had no other means than cog wheels and cams. The bits and pieces of his computing engine can be seen in the Science Musuem at South Kensington. In the early part of the war, Professor Alan Turing, late of Manchester University, actually embodied the Babbage computer in hadware which he used for code-breaking at a secret establishment. Many other people were employed and the thing gradually got more and more electronic, and when the was was over they dispersed themselves and all started building computers.
The first public knowledge of these strange artefacts was in either autumn 1948 or spring 1949; and you award the palm to Cambridge or to Manchester according to whether you think that a tape input is an essential part of a computer, as opposed to manual input. Thereafter, everybody was building computers and I became very closely involved in them at that time. Ten years later there was a computer exhibition at Olympia, and a symposium on computers took place at the same time. I was asked to give an address on "Computing, the first Ten Years". As I was just, as 45 I thought, passing out of the subject—this was my sort of apologia pro vita mea over the 10 years of transactions in which I had been involved—I repeated a story which had been told to me 10 years previously, that the most important event in computer history was the meeting of Turing and Von Neumann in America when they were both working on the atomic bomb project. The story was told to me by John Womersley, the director of mathematics at the National Physical Laboratory, and I quoted it in good faith.
Ten years after that, a computer historian at Newcastle University said that he had been studying my paper and could I establish the story of the meeting between Turing and Von Neumann, each of whom had sparked the other off by having half the story in his head. I just quoted John Womersley (who was dead) and said that the only other person who would know about it was Emeritus Professor Max Newman, late of Manchester University and now in retirement. I said: "You had better go and get the history out of him." He did try to do that, but Max Newman was as tight as a clam. He came under the Official Secrets Act and he had been specially warned that this was a very sensitive area so he would not say anything at all. He would not even admit that he had ever been in on the project, although everybody knew that he had been
At this point in time, it just so happened that I was on corresponding terms with the then Prime Minister, Mr. Heath. I told him the whole story and I said: "This is absolutely absurd. We are being done out of the credit of inventing the first computer in world history and Turing's object was a toy compared to anything we have got now and his methods of code breaking are now universally used. There is nothing here that is secret at all. The trouble is that the people who are refusing to declassify this do not know what it is they are refusing to declassify. The only person who knows the whole story from the beginning is Max Newman, in retirement."
I got a very nice letter back from Mr. Heath, saying that he was reluctant to overrule departmental advice but that he had asked that an official history of the matter should be written, to which Professor Newman could make his contribution. That was done, and it was then 46 submitted to a proper adjudication. It was decided there was absolutely nothing in it that the world could not know, and the whole thing has been written up recently in some very interesting publications which I can commend to anybody who is interested in this subject. And there was the Official Secrets Act, and the vague, numinous threat it presents, obstructing the credit that ought to go to this country for inventing the first computer. I think that was a very great pity, because by this time everybody thinks that computers were invented in America, although they were not.
If I may, I should like to close on a very brief anecdotal point. I was once let into a secret. It was a very deep secret but I had to know it. It was that there was a body called the Government Communications Headquarters at Cheltenham, which was abbreviated to GCHQ. Under no circumstances must I ever refer to it except to other people who, like myself, were in the know. It was necessary for me to go and talk to them because I had to collaborate with them on the design of future computers which they thought they were going to need. I was told I could go by train and I was given a map of how to reach them. I showed it to the taxi driver and he said: "Oh, that's the Government Communications Headquarters, GCHQ". And I had been carrying that secret under my belt all that time. It is what is sometimes called, I think, a secret de Polichinelle: it is a secret that everbody knows and no one may talk about. My Lords, this has been a somewhat anecdotal contribution to the Motion of the noble Lord, which I support; but it has taken only five minutes and I hope that your Lordships have been interested.
§ 4.40 p.m.
§ Lord RITCHIE-CALDER
My Lords, I am sure that we are all in complete agreement on the necessity for doing something drastic about Section 2 of the Official Secrets Act. Therefore, we are very grateful, once again, to the noble Lord, Lord Wigoder, for raising this issue and enabling us who are involved—particularly the Press—to see our way through some of the absurdities and difficulties which have always confronted us. I have been involved in official secrets for quite a while. With colleagues, such as my noble friends Lord 47 Leatherland and Lord Jacobson, I have probably been as agile as most people in getting around the D Notices covered by the Official Secrets Act and, as my noble friend Lord Jacobson said, it is not very difficult. We did not stay awake at night worrying about official secrets and how to get away with them. If you were astute I think that you could. What was much more important was that much of this restriction might be counter-productive, because if you found your way through a D Notice you obtained a great many leads into things that you were not supposed to know, or to talk about. Therefore, in many cases, such as scientific matters, from the fact that something was covered by a D Notice you discovered something that you ought to find out about.
During the war, I was an official secret, and for 30 years after the war I was still an official secret. It was a breach of the Official Secrets Act—and, indeed, some people were threatened—to disclose the fact that I was Director of Plans of the Political Warfare Executive. What was the significance of that? During the war, it might have been reasonably doubtful whether I should be known. But, apart from the fact that I might, in general association, be linked up with Dick Crossman and Hugh Gaitskell and a few other people who might have indicated the kind of operation we were on, there was not very much in the way of information to the enemy that could have been disclosed in my case. But that experience in a top secret department during the war gave me—and has left me, from the other side of the fence—an absolute obsession about official secrecy.
While it is true, as has been rightly pointed out, that in the military sphere—and probably as much now as during the war—the giving away of secret information which would involve the lives of millions of people is legitimate official secrecy, I found, as I think is borne out by some of the remarks made here, that, however much we may praise and commend the Secret Service, and say what a wonderful Secret Service we have, a good deal of official secrecy is merely an attempt to cover up, or prevent the proper ventilation of, a mistake by a Department. I mean that quite seriously, and one could document it in a very substantial way. The OSA, or Official Secrets Act, often 48 stands for RIP. Blunders are buried, which is reprehensible enough in its intention, but worse still when those blunders can be repeated. This is a real situation. It is not merely the fact that politicians in sensitive areas of politics would gladly not have facts discussed when that would be embarrassing to them, because, at the same time, this official secrecy operates between Departments to the positive disadvantage not only of the public, but even of good and efficient government.
The most desperate 24 hours of my life were spent during the war, when a file marked "Most Secret"—that was before the Americans came in and imposed the term "Top Secret" on us—was lost. The whole of the Foreign Office security service went on red alert and everything was stirring, whirring and raging. It was recovered without harm, but the extraordinary thing about that official file was that it would not have given one piece of information, or even comfort, to the enemy. It was merely a collection of minutes dealing with our criticisms—and our proper criticisms—of a section of the War Office. It was merely something inter-departmental, and the lengths to which my own Department, the Foreign Office, was prepared to go to prevent it getting into the hands of the enemy, the War Office, were quite prodigious. This kind of thing is repeated in peacetime. As has been said, young people have a greater sense of the absurdity of this state of affairs than we, who grew up through a less uninhibited period.
I shall give your Lordships one more example since we are getting anecdotal, following my noble friend Lord Halsbury. During the war, we had a D Notice on the information contained in leaflets dropped on Germany. No one was allowed to print these. There was a D Notice prohibiting newspapers from printing what was contained in those leaflets and, in fact, it was a crime to be in possession of a leaflet or to disclose its contents. As your Lordships will understand, those leaflets were dropped by intrepid bombers which, on many occasions, ran into a solid wall of flak, so they turned back and, very properly, ditched their leaflets in the North Sea. They fell on trawlers or were picked up in trawls, and on one occasion were blown by the wind over Grimsby, but anyone 49 in possession of a leaflet could have been tried under the Official Secrets Act. There we were, spending a fantastic amount of money, risking people's lives and risking bombers, trying to get that information through to the Germans, but people could be prosecuted for disclosing it. That is the kind of absurdity which still exists today.
What I am concerned about, since I still believe that journalists are agile enough on their feet to cope with much of what is now in Section 2, is that it is dishonest that we should be put in that position. I have some real misgivings about producing a new Section 2 which would strengthen or redefine the position, because, once again, after it was spelled out and hardened out, it would be another pretext for oppression, for suppression or, in our case, for evasion. I feel that that is not the proper way to approach the matter. We need something, and what we need in a very real way is a restoration of what used to be the ethic of my profession, which included confidentiality—and I am not invoking the act of confidentiality.
The fact is that today there has been a great corruption of human relationships. It is a moral question and not a legal one. How can people—person to person, or corporately—be frank with each other and discuss matters, when there is always the risk that something will appear in the gossip column or be used against you? This was illustrated in America, where they have a Freedom of Information Act, when Daniel Elsberg, on his own initiative, disclosed the Pentagon Papers to the New York Times. The Pentagon Papers disclosed the whole verbatim account of a discussion, in the National Security Council of the United States, on the Vietnam war. This is a pretty grim document. I was asked on American television what I thought of it, and I said that I had no doubt about Daniel Elsberg's intentions and motives. He felt very strongly about the Vietnamese war and thought that this was something which ought to be revealed, to show just the kind of things which were going on.
However, as I said on that programme, I find myself in considerable difficulty. How does one conduct any kind of reasonable discussion if one does not have some kind of guarantee of a degree of confidentiality? During the war, people were, 50 in many cases, inadequate. Fairly often during my involvement in political warfare I had to argue a proposition and be the devil's advocate as well, merely because other people were not able to deploy the argument. The facts had to be brought out and a dialogue had to be conducted. Again I said on this programme: what would happen in these circumstances if something which I totally deplored but which I was putting forward as the devil's advocate was quoted against me and I looked like an absolute bastard? What could I do about it? This is not fair. I believe that a great deal of this is now happening in public life, and it is a corruption of public life.
Confidentiality surely means that people ought to be on such terms with each other that they can trust each other, to the extent that they realise that they are thinking aloud, in honesty and security. Throughout my life the gossip columns have been chasing after this kind of keyhole or earhole gossip. It is getting worse.
I would ask—and I think my colleagues agree with me—that any consideration of the improvement of the Official Secrets Act, or the removal of Section 2, should include what was asked for by the noble Lord, Lord Wigoder. I now support him in asking for a real consideration of what we mean by these areas about which the public have the right to demand information and about which we have the right to know. I do not believe that we always have the right to know. In fact, in some cases it would be very bad for us if we knew. But there are other areas in which the Press should be free to navigate on the high seas of information. I agree with my noble friend Lord Jacobson that decent, investigative journalism—which is becoming very good in this country to the embarrassment of many people—ought to be encouraged by the availability of and accessibility to facts, but it should be accompanied by something which I want to see restored, at least in journalistic dealings; namely, confidentiality, which gives to people at least the confidence to speak to other people.
§ 4.53 p.m.
§ Lord FOOT
My Lords, so much has already been said in this debate which impinges upon what I had thought of 51 saying this afternoon to the House that I think it would be best if I abandoned my original plans and confined myself to one or two limited observations. The debate has already illustrated that there is a very large measure of agreement in this House and, indeed, among the public generally about the Official Secrets Act, and particularly about Section 2 of that Act. The problem of the dissemination of information in a free, democratic society is one of those problems—they are not infrequent in human affairs—where it is very easy to see what we should like to achieve in general terms, but when we try to work out how to do it we are faced with very considerable problems. I was glad that my noble friend Lord Wigoder began by saying that there could not be any very useful discussion of this matter unless we recognised that here is a very serious clash of interest. That was illustrated by what the noble Lord, Lord Ritchie-Calder, said just now: that there are very difficult matters which have to be resolved.
If I may put the matter in a slightly different way, there are some problems where it is very easy to see what is wrong but where it is not at all easy very often to find a suitable remedy. In that regard, the problem that we are discussing today concerning the communication of official information bears a striking resemblance to the problem of the reform of this House.
I think everybody is agreed that when we were discussing the Bill for the reform of this House—nearly 10 years ago, I think—there was unanimity that the present constitution of the House will not do: that both its powers and its composition are an anachronism. However, as soon as we started to discuss what to do about it and what to put in its place, the unanimity very rapidly evaporated. Indeed, it led to ructions, particularly in the other place. In this particular case, nobody—and this is not at all surprising—has come forward to defend Section 2 of the Official Secrets Act. I foresee that when the Minister of State gets up to reply to this debate he will not pin Section 2 to his helmet as the Oriflamme; he will not go to the barricades in defence of Section 2, whatever Mr. James Callaghan may have said 52 when he gave evidence to the Franks Committee.
The second point which has been brought out very clearly is that the reason why the original error was made during the passage of Section 2, in all its comprehensiveness and width, the reason why that piece of legislation, which everybody agrees is ludicrous and absurd in its application, came about, was because the measure was not adequately and properly discussed at the time. I say this, bearing in mind that it must have been a Liberal Government which was responsible for the situation, but however that may be—
§ Lord FOOT
My Lords, according to the noble Lord, Lord Wigoder—and I have no doubt that he has got it right—the Bill passed through the House of Commons in a single afternoon. We do not learn much from experience, do we, because here we are today. It is a common complaint that we are asked to pass a great mass of legislation without any proper opportunity to consider it, in particular in the other place. Great chunks of legislation are forced down the Parliamentary throat, and today we are making the same kind of mistake that was made at the time of the passage of this Act.
The other startling contrast is that when we come to speak about remedying the mistake which was then made, immediately all Governments, of whatever colour and persuasion, are apparently seized by a kind of state of lethargy. What are the facts of this case? The facts of this case are that the Franks Committee was set up in April 1971. It performed its own task with considerable expedition, because it reported in August 1972. Since that time—a period of about six years—nothing whatever has happened except, as my noble friend has pointed out, that a 53 promise to do something about it appeared in the Labour Party's Manifesto of October 1974. I am not sure whether that was the second edition of the promise and that it appeared originally in the February 1974 Manifesto.
Now that the new Manifesto is in print—if it is—I suppose that that promise will be repeated. But there is this startling contrast between the speed, the unseemly haste with which we pass bad legislation, and the reluctance and unwillingness of successive Governments to try to remedy what has gone wrong. After all, we have had this Section 2 on the Statute Book for nearly 70 years and during the whole of that period it has been the cause of infinite controversy, trouble and anxiety.
The last thing that I want to say to the House is this: I have been trying to foresee what the Minister will say when he replies and what explanation he will give for the fact that the Government have not been able to introduce the amending legislation which they had undertaken to do. I foresee that the Minister will say, quite rightly underlining what my noble friend said at the conclusion of his speech, that this is an extremely difficult matter; it is very difficult to strike a balance between the security of the State and the right of private individuals to have their privacy respected—which is one aspect of the matter—and on the other hand the right and freedom of a democratic people to have access to Government information.
I entirely agree that that is an extremely difficult matter and my fear is that we shall be told by the Minister that the difficulty of the problem and the fact that there are all the varying alternatives which are being canvassed are the reasons for the delay. My noble friend referred to all sorts of different ways in which one could deal with this problem and we shall be told that such are the difficulties of producing a satisfactory piece of legislation that the thing has had to be put off. If I may say so, that is exactly when the importance of the recent report of Justice called Freedom of Information, comes in.
I do not suppose that many of your Lordships will yet have had an opportunity of seeing anything more of this report than has appeared in the public Press, because it only came into publication last 54 week. I should like briefly to tell the House what the substance of the report is, because in my submission it constitutes a way in which we could, tomorrow, make an important contribution to the solution of this difficult problem without the necessity for any legislation. Indeed, the first burden of this report is that we could perhaps go quite a long way towards dealing with the problem of the public being given proper access to official information by purely administrative measures which would not call for any legislation. That is the theme of the report and perhaps I may quote from paragraph 6. It says:For these reasons we have reached conclusions which can, we think, be put into effect without legislation. If their implementation proves to be a success, whatever Government is in power will be the more ready to extend t le ambit of their operation by detailed legislation, and it is our hope that there will eventually be such legislation. A small but immediate success, however undramatic, in facilitating access to official information, even on a modest scale, is much to be preferred to a prolonged and indefinite controversy over a statutory right on a larger scale, a controversy which may produce no practical results".I shall first draw your Lordships' attention to that point because the theme is that perhaps by administrative measures we could make some progress. How will it be done? It is proposed that there should be drawn up a code of practice in the matter of the dissemination of official information. I shall not weary your Lordships with the details but perhaps I may read the first paragraph from the proposed code of practice, which sets out the purposes and the objects:It is essential to the effective working of a democratic society that the public should be adequately informed about the actions and decisions taken by the Government and other organs of public administration of the United Kingdom. The paramount criterion should be that the public may, by being adequately informed, have the opportunity of understanding and evaluating the nature of, and the reasons and grounds for, such actions and decisions. Accordingly, with certain necessary exceptions"—and those exceptions are set out later on and they follow very largely the exceptions which are contained in the Franks Committee Report, dealing with matters of national security, defence, foreign affairs, crime enforcement and the rest—all documents containing information on such matters should, so far as is reasonable and practicable, be disclosed within a reasonable time to any person requesting their disclosure55 Who is to decide what is reasonable and practicable? What can reasonably and practically be disclosed and what should not be disclosed? The proposal in this report is that the job of policing or monitoring the code of practice should be given to the Ombudsman. The way in which it would be given to him is that the code of practice would be laid down; if any individual felt aggrieved that he had been refused access to certain information, he could then make a complaint to the Parliamentary Commissioner according to the present procedure and then the Parliamentary Commissioner, who has a lot of experience of this sort of 'thing could make his judgment as to wher thethe refusal to give the information amounted to maladministration.
That is the substance of the proposal and perhaps I may quote one further passage to your Lordships. It sets out what I think would be the great advantages that this proposal might entail. It says:Successive Parliamentary Commissioners have already acquired considerable experience in investigating complaints, and the office is respected by Parliament and the Civil Service as well as by the public. We therefore lay upon the Commissioner the crucial function of determining whether in any given instance insufficient information has been disclosed".This is the important part:A body of precedent will be developed. Guide-lines will emerge. In this way, instead of a rigid system seeking to provide an answer for a multiplicity of circumstances, we should have a flexible Code which leaves room for development by an independent figure in the light of experience".I should like to conclude by saying that this report is not produced by a lot of fanciful people. It was produced by a number of distinguished legal practitioners and academics, including the former Ombudsman Sir Alan Marre, and it included two former Permanent Secretaries, one of whom was the noble Baroness, Lady Sharp. So this was an eminently practical and pragmatic document and I suggest that it ought to receive the most serious consideration by the Government because if they were to adopt it, it would not require any legislation at all, except possibly the total repeal of Section 2, which could be done by a one-clause Bill. It could be introduced, as the Chairman of the Committee said in his article in the Observer yesterday, 56 within a matter of weeks. If the Government chose to study this document and if they thought there was value in it, it would give them the opportunity of carrying out the commitment which they made in their last Manifesto, and carrying it out within the remaining period of the Government's life.
§ 5.10 p.m.
§ Lord McGREGOR of DURRIS
My Lords, it might have been expected that the Royal Commission on the Press would have dealt in detail and at length with the subject matter of the Motion proposed by the noble Lord, Lord Wigoder. However, we could not do this because we were faced with four reports which covered ground which was central to our terms of reference. The Younger Committee and the Franks Committee on Section 2 of the Official Secrets Act 1911 had both reported in 1972; the Phillimore Committee on Contempt reported in 1974, and the Faulks Committee on Defamation in 1975. We could not sensibly have traversed the same ground as those expert Committees. We did not even have a response from Governments about the conclusions which those Committees had reached. Indeed, as my noble friend Lord Jacobson reminded us earlier, the only formal response of Government to date to any of these inquiries has been a discussion paper on contempt, published a short while ago, three and a half years after the Committee reported.
This discussion document runs to some 21 pages, and concludes laconically with a hope on the part of the Government that, "all who feel they can contribute to the discussion of these matters will do so." The Royal Commission defined freedom of the Press as,That degree of freedom from restraint which is essential to enable proprietors, editors and journalists to advance the public interest by publishing the facts and opinions without which a democratic electorate cannot make responsible judgments".In other words, we centred our definition upon the requirement that a free Press must have access to information.
I do not wish to add to the wise commentaries which have been made by earlier speakers. Indeed, I found myself in the unusual situation of having listened to seven speakers and agreed with every 57 word they all said. I wish instead to extend the boundaries of our debate to include awareness of an international debate which I think is closely related to our own today; at least, I hope that your Lordships will not feel that this relationship is tenuous. It goes back some seven years to the growing awareness of developing countries that their radios, televisions and newspapers are filled with news which comes from the West, and their televisions with programmes which come largely from the United States. The feeling has grown, and it is very strong now, that efforts should be made to reduce the dependence of Third World countries on Western sources of news and entertainment.
Of course, such dependence is in part a legacy of colonial days. Telephone calls and telegrams have to go from those countries to the old Imperial capitals. You cannot telephone from Lusaka to Nairobi save via London. Satellites, I understand, are rapidly altering that. There is a shortage of trained personnel, whether to produce programmes, or as journalists, and in the particular case of journalists the Commonwealth Press Union is making valiant efforts to provide training facilities on the spot. These are genuine grievances and I do not wish to discuss whether we in the West should be blamed for this situation. I do not think we should. But these anxieties and irritations about the situation have swelled into a campaign which was described in a recent lecture by Doctor Richard Hoggart, who for five years was an Assistant Director General of UNESCO, in the following terms. I quote them because I think what is being said is of significant importance to us, and because an awareness of these attitudes is going to be a very necessary part of our outlook. Doctor Hoggart said:Both from politicians in power and from intellectuals not in power, the same cry goes up: this is neo-imperialist aggression; this is cultural imperialism. The West is still dominating and colonising us. They provide the machines; they provide the programmes to fill the machines; they shape our realities day by day.The 1972 General Conference of UNESCO called on the major communicating countries to recognise their international responsibilities on the grounds that otherwise the mass media could become vehicles for 'the domination of world public opinion or a source of moral and cultural pollution'. It went on to argue that the one-way flow from only a few virtually 58 monopolistic countries might seriously harm 'the cutural values of most of the remaining countries'.Year after year after year at international gatherings that sort of resolution has been passed and that sort of attitude strengthened. Moreover, the Soviet Union has joined in the debate and taken advantage of the multiplicity of opportunities which it offers. Doctor Hoggart continued,The Soviet Union has put down resolutions at all the relevant UN Conferences about the dangers of 'uncontrolled' growth in mass media activity. The formulation is usually that, in view of the great power of these media, it is the duty of sovereign States to ensure that they are not used for 'corrupting' ends; and, in particular, that States should agree not to transmit 'undesirable material' across each other's frontiers".There is a serious risk that developing countries and such organisations as UNESCO will embrace censorship, though it will be called "constructive reporting", and Government control over means of communication, and that will be described as "protection of national soveriegnty and cultural identity". In a move which may point in the direction of control over Press and broadcasting in large areas of the world, UNESCO last year set up a Commission under the chairmanship of Mr. Sean MacBride, the concern of which is to study:The totality of communication problems … globally".It has 15 members, one of whom is Mr. Leonid Zamiatine, lately Director-General of TASS and now a senior ideologue in the Soviet Government. The Commission is to report next year.
Among journalists in this and other Western countries there is great concern about the outcome of this development, the background of which I have tried to sketch. The chairman of the Communications Advisory Committee of the United Kingdom National Commission for UNESCO last week called a conference of journalists and others to assist them in the international presentation of British views on freedom of the Press and other means of communication. At that conference, very well-informed people expressed great anxieties.
To be effective in combating this further trend towards totalitarian control of news and opinions, we must be clear about the meaning of the principles which we maintain and about their application at 59 home. We cannot preach the virtues of access to information abroad and deny it at home. It would greatly strengthen the hands of those who have to present the democratic case to such bodies if there could be at least a statement of Government response to the issues raised by the motion of the noble Lord, Lord Widoger. Of course, I am not expecting my noble friend Lord Harris of Greenwich to make such a response today, but a response is necessary because many people when faced with the case for democratic freedom in this area will respond by citing, among other things, the existence of our Official Secrets Act. So, in supporting the Motion, I wish to put the matter in a wider perspective than the particular details of a piece of our own legislation. I hope that the noble Lord, Lord Wigoder, will not feel that I have strayed too far from his Motion.
§ 5.25 p.m.
Viscount COLVILLE of CULROSS
My Lords, the noble Lord, Lord Wigoder, invited us all to be constructive and I think that no one for a moment would deny that the noble Lord, Lord McGregor of Durris, from what he has just said, has taken the noble Lord, Lord Wigoder, very much at his word. Perhaps it is a feature of this debate that we have carried on from where the recent debate in another place finished, because everyone on all sides of the House has taken it for granted that Section 2 of the Official Secrets Act needs reform, and everyone except the noble Lord, Lord Goodman, at least implicitly seems to accept the broad Franks approach. Certainly the three main political Parties are already on record as doing so and certainly on this side I was very glad to hear my noble friend Lord Windlesham endorse the criticism and, I think, the solution.
The noble Lord, Lord Foot, reminded us that if one takes some of the arguments that have been voiced in the debate any distance at all there are substantial implications for privacy—not least via the computers mentioned by the noble and learned Earl, Lord Halsbury—in a large number of cases. However, although that is an important part of the argument, perhaps I might be forgiven if I stick to the main stream of what has been discussed this afternoon.
60 As I thought about this matter, it seemed to me that there were two main problems confronting those who wished to make decisions. First, does one merely legislate so as to prohibit, on some sanction or another—whether it is criminal or civil—the disclosure of such necessarily secret or confidential information as one may choose to define? Or does one, in addition, and perhaps separately, go further and positively enact that there shall be a right of access by the public to certain documents or, indeed all documents, save those which are specifically exempted? Those are two separate issues which it seems to me do not necessarily have to be solved at the same time or in the same way. Indeed, the noble Lord, Lord Foot, has reminded us that Justice sees the second half of this as being able to be implemented in part by administrative means without legislation at all.
However, the other problem—and I should be grateful if the noble Lord, Lord Harris of Greenwich, was able to say a word about this—lies in the difficulty that always arises over any individual document. If it is withheld or if someone seeks to obtain access to it and is refused, under either the replacement of the Official Secrets Act or under the more general freedom of information type of legislation, who decides whether it is within the class that is to be disclosed or is undisclosable, and in particular who decides—even if it used not to be able to be disclosed—whether that restriction is still valid?
I strongly suspect, in view of the statement made by the right honourable gentleman the Home Secretary on 22nd November 1976—where the ambit of the reform was clearly set out and the Government said what they thought—that it is the question of who is to deal with the problem of identification of what may be disclosed at a given moment that is causing difficulty. Certainly, different solutions have been put forward and, as has already been mentioned, my right honourable friend the Member for Wimbledon said what he thought my Party would do about this matter.
I should be very grateful if the noble Lord, Lord Harris, could say whether that is the sticking point and if so whether the Government have any further thoughts on it. However, I thought that, as we had delivered ourselves of our view upon 61 that matter, I might, with advantage, look a little further at the Swedish and the other Scandinavian and American precedents for the second type of legislation—that is, the freedom of information type of approach which the noble Lord, Lord Jacobson, mentioned. As I have attempted to do so I have been particularly struck, as indeed was the Franks Committee, by the care that one must take before one can assume that any overseas arrangement or solution is readily transportable into the United Kingdom system of law and governmental procedure. It seems to me that it is at least as relevant to consider the attitudes of the courts and of the Civil Service—and perhaps, indeed, the size of the country because that has a bearing upon the amount of information that any system might throw up—as it is to consider the actual terms of the legislative solutions that other countries have adopted.
I would say in passing that the terms of the Manifesto, which forms the basis of the Motion of the noble Lord, Lord Wigoder, are not really very adventurous; because in the civil sphere of a replacement of the Official Secrets Act all one has to do is to adopt the Franks Committee recommendation. It is very plain that in the criminal sanction in paragraph 221a of the report the burden is, indeed, on the prosecution—as one would expect—to show that the information should not have been disclosed. In the civil field we already have a situation where the courts themselves, in considering claims of Crown privilege, have produced this very rule as well. In the case of Conway v. Rimmer this House laid down the rule that it was for the courts to consider whether the Crown was justified in seeking to withhold documents in a civil case. Certainly, when one is dealing with a claim of privilege for a class of documents, the courts have said that there is a very heavy burden on the Minister seeking to withhold which they will certainly seek to consider and where they are unlikely to be persuaded.
It is a little different when it is the contents of an individual document that are at stake. But in the Conway v. Rimmer case, which related to a police cadet and the records of his service in the police force, eventually the noble and learned Lord, Lord Morris of Borth-y-Gest, looked at the five documents concerned 62 and pronounced himself of the view that there was no earthly reason why they should not be disclosed, and the case went on with them in public.
I do not think that it was that rather simplistic version of the debate that the Liberal Party and, indeed, the noble Lord, Lord Jacobson, wanted solely to discuss. I agree with both that a mere reform of the Official Secrets Act will not by any means necessarily of itself lead to any great change in the availability of documents for the public. After all, the terminology of Section 2 at the moment deals in terms of authority. If a document, or whatever it is, is authorised to be communicated, then no charge lies. What happens at the moment is that the Civil Service and Ministers authorise themselves to release whatever it is they think fit and refrain from authorising themselves where they do not. In practice, the choice of what to publish and what to withhold would be exactly the same under the formula adopted by the Franks Committee as it is now.
Therefore, the mere reform of that sort will not necessarily lead to any greater disclosure at all. Indeed, as one would expect, in paragraph 81 the Franks Committee points this out and reminds us that it is the differences in constitutional and governmental conventions, practices and arrangements across the different countries that were studied that are at least as important as legislation that has been passed in achieving the greater disclosure and freedom of information that has in some places been achieved. In the United States and in Scandinavia, particularly in Sweden, positive legislation has evolved which grants a right of access to the citizenry, although in both cases—and, indeed, elsewhere as well—I suspect that there are still many more restrictions than people have realised.
If we wanted to pass similar legislation in this country, I see no reason to suppose that we could not do so; but we could do so whether or not we had already put on the Statute Book a comparatively simple Act along the lines of Franks. Certainly to do that would not rule out a further step forward later on if that was what Parliament wished. In fact, all we have done, or would have done, in the Official Secrets Act repeal and reform would be 63 to set out the list of exceptions from what may be disclosed, which are built into the Swedish code in the Secrecy Act, and in Section 552B of the United States Code of Law. Those are the restrictive parts of both those systems and we would similarly provide in English law for something that looks to me remarkably similar in the territory that it covers.
What we would not have done is to provide for the other positive rights of access. Here what seems to me to be of great significance is that this is a subject that has never been fully researched. The Franks Committee forswore the task expressly, and we can see the reasons on paragraph 85 of its report. I do not believe that the public has ever considered in full the implications of what is suggested. Let me give your Lordships one example. In Sweden I believe that there is a book in which any member of the public can look up and find out the exact income of any citizen of Sweden in the previous year, as disclosed to the income tax authorities. There are certain young ladies, or parents of young ladies, who, when marriage is contemplated, make good use of this. But it is a far cry, (is it not) from the Statutory Declaration of Secrecy by all Inland Revenue personnel and people associated with the tax world?—which has been imposed for a long time in this country and which is now found in Schedule 1 to the Taxes Management Act 1970. There would have to be a marked change in public attitudes before one went that far.
I suppose that to some extent the reason such a thing is tolerated—or even possibly enjoyed in Sweden—is because of the very long custom of openness of information in that country, which goes back about 225 years. Therefore, they have had time to get used to it. It would, indeed, be a novel suggestion to some of the members of the public here. The United States also gives us an example of something that we might need to bear in mind ourselves when working in this comparatively unexplored field. Even before the Freedom of Information Act was passed in America, in the course of deciding cases the judges had drawn up a list whereby they would permit the establishment, the agencies of Government, to withhold information relating to certain broad classes; it was very much the 64 same as was finally incorporated in the exceptions to the Freedom of Information Act.
So there was a background against which the courts were prepared to provide for restrictive interpretations of what could be disclosed. Then the Freedom of Information Act itself was passed with the list of exceptions. It is interesting to note that a learned author, writing very soon after the Act came on to the Statute Book, said that the exception which related to the existence of statutes, which allowed the agencies to withhold information, in his view might prove the largest loophole in the whole scheme. He pointed out that, at that time, there were nearly 100 statutes treating disclosures in force at that time, and that while many of them were specific, other applied only through the discretion of the Government officials. So it turned out in practice.
First, the Government officials interpreted their discretion so that, on the whole, they refused to produce information that was sought and they used their statutory powers to do so; and, secondly, the courts—I think, at least, in part because of their history—tended to uphold this restrictive view. I found, for instance, that a file 23 years old which had at one time been said to have been top secret was simply ruled out by one of the courts on the basis of an affidavit by a Minister that it was still top secret. Equally, there were civil servants who were prepared to withhold files 20 years old relating to violations of Department of Labour Regulations, simply on the grounds that they were investigations into law and order. Those are the sort of things that happen.
So it was that certain amendments had to be made. First of all, the civil service in America had been extremely dilatory, and that was one of the methods whereby they managed to avoid producing the information that was sought. Secondly, they tended to interpret against the right to inspect any discretion that they had. I suppose the reason why the Act fell upon such barren ground was at least in part because of the constitutional arrangement in America whereby there is a specific separation of functions, so that when Congress passed the Act it did not need to have the support of the Executive, or indeed of the courts. It certainly did not have the support of the Executive in 1974 65 because they passed one of the amendments in the teeth of the Presidential veto, which is a pretty severe thing to do.
This leads me to the suggestion that if one is liable to have, in a country which I should have supposed is as civilised in these respect as we are, as much obstruction as that, we ought to go carefully before we, in Parliament, simply decide that we should like to legislate. I suggest that before we go very far on the freedom of information road, we ought to take certain steps something like these: first of all, we ought to ask what is the total body of information publicly collected and publicly assembled which might be the subject of disclosure. I do not know whether anybody knows the answer to that, and there is certainly no record that I have been able to find listing such things for the public to consider. Then one would need to decide whether it was the sort of information that would be susceptible of being dealt with generically or only in terms of specific requests for a given document, and, if the latter, how would one catalogue it.
Then, perhaps having discovered what there is available, one ought to assess the impact of the suggestion of making it available upon the Civil Service itself and also upon the public. Here is the area where privacy comes in, because if personal records are to be made available to everybody else as well as to the person concerned, that person may very likely object. Perhaps just as importantly there should be public discussion of the whole idea. This, again, is something that has never taken place. Perhaps there should be issued a Green Paper with fairly specific proposals which people inside and outside Parliament could consider and talk about.
Unless we end up with a broad area of consent about what is to be disclosed and how the exercise is to be carried out, and who is to decide which documents may be seen and which may not, we shall run into difficulties of the same sort that seem to have beset America in the last ten years. That is why I should prefer to see something done now about the Official Secrets Act, Section 2. I should like to know why it is that we cannot have the promised reform and re-enactment in the shape suggested by Lord Franks. Why is it that this Government have had to 66 wait such a long time without doing anything? But, that having been done, then I should be happy indeed to go further down the path along the field of information trail to see what would be acceptable. But we do not need to do that before we have the Franks reform.
§ 5.45 p.m.
§ The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)
My Lords, we are all indebted to the noble Lord, Lord Wigoder, for having put this subject down for debate today. This has been a most valuable debate. Virtually all those who have spoken have done so with some degree of specialist knowledge, be it the noble Earl, Lord Halsbury, or my noble friend Lord Ritchie-Calder, talking about their experiences in the war, and a number of others who have had a great deal of experience with the professions of journalism or the law.
There has been one common theme running through nearly all the speeches and it is one with which I would in no way dissent, and that is that there has been in this country an altogether unreasonable level and unnecessary degree of secrecy. It is necessary to do something about this. That is a general view on all sides of the House, and it is certainly not one with which I would be disposed to quarrel this evening. As the noble Lord, Lord Wigoder, indicated, this is the second debate on this matter in the last eleven days, because eleven days ago there was a debate in another place on precisely the same subject. Whatever may have or indeed has been said about lack of debate on these particular issues in the past, that charge can hardly be made now, given that situation.
There have been two entirely different strands of thought in this debate. First, there has been the specific question of Section 2 of the Official Secrets Act 1911, and then there is the much wider question of "open government" touched on by the noble Viscount, Lord Colville of Culross, in, if I may say so, a characteristically thoughtful speech, and by a number of my noble friends and noble Lords on other sides of the House.
It is of course Section 2 that we are talking about. I agreed with what was said by the noble Lord, Lord Goodman, 67 that it is a question of Section 2 and definitely not a question of Section 1. This country has secrets, and it is desirable to keep them. That being so, there can be no doubt that we require on the Statute Book official secrets legislation that is going to be effective. What we are talking about today is the much narrower question of Section 2, though undoubtedly, as has been made clear by virtually all who have spoken, it is an important matter. Certainly the whole question of Section 2 is a long-standing problem. Governments of all complexions have found its resolution particularly difficult. For the last ten years at least it has been a matter of debate. That being so, we are in no danger of repeating the mistakes made, as the noble Lord, Lord Foot, said, of undue haste in 1911. Whatever else may be said we can hardly have that charge made against us.
As the House will recall, the Fulton Report in 1968 proposed that:the Government should set up an inquiry to make recommendations for getting rid of unnecessary secrecy in this country. Clearly, the Official Secrets Act would need to be included in such a review".That was the statement in the Fulton Report. In April 1971 the then Home Secretary, Mr. Maulding, set up the Franks Committee,to review the operation of Section 2 of the Official Secrets Act 1911 and to make recommendations".That Committee reported in August 1972.
There was hardly a Party element in anything that the noble Viscount, Lord Colville, said, subject to one or two little asides in his peroration. I therefore feel it necessary, as I am sure he would agree it is desirable for me to do, to say that when the present Opposition left office in 1974, despite the fact that these recommendations had been made in August 1972, no proposals had seen the light of day, not was anything said on this particular subject in The Right Approach. Nevertheless, in the debate on 15th June we had an interesting speech by Sir Michael Havers, and certainly we shall take close account of what he has said in our own discussions of this matter.
No similar criticism could be made of the Liberal Party, who have devoted a great deal of time and attention to this matter in the recent past. The noble 68 Lord, Lord Wigoder, raised the matter in the debate on the Address last November and indeed has initiated today's debate. If I may say with respect, the speech he made last November and the statement which was subsequently made by the Liberal Party illustrate some of the problems about changing Section 2.
Lord Wigoder will recall that in the debate last November he contemplated criminal sanctions being applied to the unauthorised disclosure of Budget information but not to law and order information; that, broadly speaking, was the thrust of his argument last November. But the Liberal Party, who came out with this very interesting statement of their position on this matter, said they wanted to see the protection of criminal sanctions for law and order information but not for budgetary information: exactly the other way round. This is not simply to make a debating point; it illustrates part of the problem which was referred to in the quotation given by the noble Lord, Lord Windlesham, when he quoted some words of the present Prime Minister on this matter. It is one of great difficulty, if one is talking about invoking a criminal sanction, and it is well that we should recognise that.
I accept at once that the Government have been unable to make progress on this matter as fast as they would wish. That is undoubtedly true. Before going further, I will deal with a few slightly similar criticisms which were made by my noble friends Lord McGregor and Lord Jacobson when they referred to other reports on not unadjacent matters, but first let me say I recognise entirely the strength of Lord Jacobson's view that the Official Secrets Act does not normally worry editors. Though I did not have the good fortune to occupy as senior a position on a newspaper as my noble friend, it is undoubtedly the case that this is not the central issue so far as most editors are concerned in their day-to-day activities, and I very much agree with him.
With his substantial recent experience as chairman of the Royal Commission, Lord McGregor referred to a number of other reports—the Phillimore Committee on Contempt of Court, Faulks and Younger—and I will briefly say what the position is on each. So far as the Phillimore Report on Contempt of Court 69 is concerned, as has been pointed out a Green Paper was published in March 1978 and we are now expecting reactions to it. However, the House can have it one way but noble Lords cannot possibly have it both. I think it was Lord Wigoder who said—if it was not Lord Wigoder I apologise, but I suspect he would not hesitate to adopt this argument, if I am misrepresenting him—that once a Government have a fixed position on a matter, it is extremely difficult to get them to change it. That essentially is the argument for publishing Green Papers; it is so that the public should be made aware of what the facts are, the general range of possibilities so far as the Government are concerned, and then the public are in a position to make comments before the Government have reached a settled conclusion. That is exactly what has happened so far as the Phillimore Committee on Contempt of Court is concerned.
I am well aware of this so far as the profession of journalism is concerned. Of course, a large number of journalists would like to have this matter cleared up as speedily as possible, but it seems to me that if the Government had come forward with clear-cut proposals, the other criticism would then have been made: "Why did you not set out the issues in Green Paper form rather than coming to us with a clearly defined position on this particular matter?" That illustrates one of the problems that arise in matters of this kind. The fact is that if you are going to consult people and give them the opportunity to put their case forward, undoubtedly this will be a factor which will delay ultimate decision on policy, and we must recognise that.
§ Lord WINDLESHAM
My Lords, would the noble Lord not accept that there is a distinction between circumstances, as has applied throughout this whole field; not just on official secrets, but also on the other reports to which he referred? A Departmental Committee has already been into the subject matter exhaustively, people have had an opportunity to give evidence; a report is then published, as the Franks Report was, and a public debate follows on that. So to that extent the public debate can take place on the basis of the report of the Departmental Committee rather than on the basis of a Green Paper.
§ Lord HARRIS of GREENWICH
My Lords, I am not sure I would altogether agree with the noble Lord on that. After all, as I have indicated, we have had this particular matter before us for some considerable time—this question of Section 2 of the Official Secrets Act—based, as it is, on the report of a very high level committee, and I can say that without fear of contradiction because my right honourable friend the Home Secretary was one of its members. Nevertheless, there is still a substantial area of disagreement, as had been made clear in this debate and in some of the comments which have been made in the last few weeks, so far as the Conservative Party and statements by the Liberal Party are concerned, and a number of people who have spoken outside the ranks of one of the established political Parties. That being so, it seems not unreasonable that in matters of this sort, notwithstanding the fact that there has been a committee of inquiry, the Government should state their position in the form of a Green Paper, making it clear that people have the opportunity to make their position known before the Government come to a settled conclusion on the matter. It seems to me not at all unreasonable to proceed in that way and, as I have indicated, that is what we have done so far as the Phillimore Committee is concerned.
As for Faulks, this matter is still under consideration by my noble and learned friend the Lord Chancellor. As for the Younger Report, the Lindop Committee, as I suspect Lord McGregor is aware, is at the moment considering the question of data protection which arose directly from the report of the Younger Committee, and the Law Commission is now considering the civil law on breach of confidence, which again is a matter of considerable importance, and I hope we shall have their conclusions before long.
I return to the narrower question of the Official Secrets Act, and I will give as briefly as possible a summary of the recent history and the present position. On 22nd November 1976 in a Statement to which the noble Viscount, Lord Colville of Culross, referred, the Home Secretary reported in another place on the conclusions which the Government had reached so far; it was, one might say, a sort of interim Green Paper put in the form of an oral statement. He was pressed, 71 following his Statement, to produce a White Paper. In the gracious Speech on the opening of the present Session we said we would introduce legislative proposals for the reform of Section 2 and, as has been made clear many times, the Government have promised a White Paper in the present Session of Parliament, and we shall keep that promise. Lord Wigoder asked whether I could be more precise on the timing of that White Paper. It will be out before the Summer Recess.
So much for the background. I think it is fairly common ground that Section 2 is unsatisfactory because of what Franks, and indeed Lord Wigoder, called its "catch-all quality". As Franks said:The section makes no distinction of kind, no distinctions of degree. All information which a Crown servant learns in the course of his duty is 'official' for the purposes of Section 2, whatever its nature, whatever its importance, whatever its original source. A blanket is thrown over everything; nothing escapes".That is indeed precisely the position. In practice, of course, things do not work quite like that, and Lord Wigoder emphasised that in his speech. A great deal of official information is revealed by the Government without contravening Section 2 in any way because its disclosure is authorised. Section 2 is concerned only with unauthorised disclosure. As Franks explained—Actual practice within the Government rests heavily on a doctrine of implied authorisation, flowing from the nature of each Crown Servant's job".Of course, Government Ministers can sanction their own disclosure. Again, if I may quote—Ministers are, in effect, self-authorising. They decide for themselves what to reveal".As has been made clear in a number of speeches, not least that of the noble Lord, Lord Windlesham, prosecutions can only be brought by or with the consent of the Attorney General, or, in Scotland, the consent of the Lord Advocate. As Franks said, this particular sanctionis saved from absurdity in operation only by the sparing exercise of the Attorney General's discretion to prosecute",and, if I may deal with the point raised by the noble Lord, Lord Goodman, no doubt to some extent is affected by jurists' previous decisions in indidual cases.
72 The main conclusion reached by the Franks Committee was:that the present law is unsatisfactory, and that it should be changed so that criminal sanctions are retained only to protect what is of real importance".The Committee's first major proposal for improving the law was:that Section 2 should be repealed and replaced by narrower and more specific provisons".The Government accept that conclusion. The Government have also been devoting a great deal of thought to the central issue of which information needs the protection of the criminal law. The Franks Report sets out the Committee's recommendations on this question in some detail but I do not intend this afternoon to pursue any detailed analysis of what the Government have in mind. As I have indicated, the Government's views on this matter will be contained in a White Paper which will be out in the near future.
Briefly, then, Franks recommended that the criminal law should apply to the disclosure of information in a strictly limited number of categories. These, broadly speaking, were foreign affairs, defence and internal security, currency or the reserves, Cabinet documents, law and order (where the information concerned would facilitate crime) and confidences of the citizen. The Government have accepted the general scheme of these particular recommendations but, as my right honourable friend, the Home Secretary said in his Statement on 22nd November 1976, there are two areas in which the Government propose to curtail Franks' recommendations on matters to be protected by the sanction of the criminal law. My right honourable friend stated that the disclosure of information about currency and the reserves should not attract criminal sanctions. He also said that Cabinet documents should be protected by the criminal law only when, by their content and security classification they fall into one of the other categories so protected. The Government intend to stick to these conclusions.
Franks further recommended that, in some of the categories, disclosure of information should attract criminal sanctions only if it satisfied a test of damage to the national interest. The ways in which such tests might be incorporated into any new statutory provisions, and the method of proving in any 73 proceedings that the disclosure in question had involved the specified degree of risk to the national interest, are certainly not simple to resolve. For obvious reasons, I do not propose to embark on discussion of this question today. There are equally technical questions relating to the types of defence that should be available to an accused depending on his status and in particular whether or not he is a Crown servant. The Government's conclusions on points such as these will be spelled out in detail in the White Paper and this will provide the basis for further debate on this matter.
I take another point raised by the noble Lord, Lord Windlesham: that is, that the point to which I think he referred as having been made in another place about rather surprising people being in some circumstances required to sign a form that the contents of the Official Secrets Act had been brought to their attention. I am well aware of this point. Only a relatively short time ago I learned that some members of Boards of Visitors at prisons had been required to sign forms of this sort, which seemed wholly unnecessary. This requirement has now been withdrawn. I take the general question and I shall gladly draw the matter to the attention of my right honourable friend who has day-to-day responsibility for the Civil Service Department.
May I now turn to the second element of this debate; that is, open government. The essential point here is that the reform of Section 2, can by its nature, deal only with the limited point of what disclosure of information should be prohibited on pain of criminal sanctions. Once we have got the criminal sanctions for unauthorised disclosure right, we can sensibly turn to consider this wider issue. Before reaching any conclusions on whether a comparable arrangement would be appropriate in this country, I think we should need to look carefully at the experience of other countries whose legislation places an obligation on Government agencies to disclose official information. The noble Lord, Lord Wigoder, and indeed the noble Viscount, Lord Colville of Culross, referred to the American experience of their Freedom of Information Act. I think the noble Lord, Lord Wigoder, urged upon us some degree of caution in approaching this matter because we would 74 not necessarily be considering an altogether comparable situation.
I can understand clearly those who favour a Freedom of Information Act. Certainly, in the light of some developments in the United States over the last 10 years or so, one can understand why there has been pressure in Congress to have legislation on these lines. I can understand the people saying, "Why do we not have something on these lines in this country"? We will obviously examine this question in the light of the general debate which will arise following the publication of the White Paper. I hope we will not always assume that other countries necessarily have the perfect answer to this question. My recent experience of visits to the United States, and talking there to representatives of the law enforcement agencies, would indicate that some of the law enforcement agencies undoubtedly have a special interest in defending this debate. One was fairly surprised—and I use rather moderate language—when one discovered what the resource implications were to the Freedom of Information Act legislation.
If I may say this, it is all very well to say, "Let us immediately do something precisely on the same lines as the Americans". But we have to recognise that there will be a public expenditure cost. Will we put this in front of housing expenditure, or education expenditure, or are we cheerfully going to agree to an overall increase in the level of public expenditure? We have to be very clear on this. There is no point in imagining that reforms of this character can be done without any Government expenditure. The expenditure can be quite considerable and we should have that in mind when we discuss this general range of issues.
As I have indicated, the reform of Section 2 is in no way holding up administrative action to make more information available. Indeed some action has already been taken. There has been a steadily increasing flow of consultative papers, including Green Papers. Let me give a few examples. We have had Green Papers on housing, on education in schools, and on British nationality law, a matter now of some considerable interest. That was the situation last year. This year—again to take one example—there has been a Green Paper on energy policy.
75 As the noble Lord, Lord Wigoder, said, it was announced in July of last year that it would be the Government's policy in future to publish as much as possible of the factual and analytical material used as a background to major policy studies. The working assumption which is now to be used is that once Ministers have reached their conclusion on a particular major policy study, associated factual and analytical material will be published unless Ministers have good reason for deciding otherwise. That is the current situation. Obviously this was last July. The results of this initiative are naturally only beginning to be seen, but I could reaffirm that we are determined to see that the citizens in our democracy are kept better informed of the reasons behind Government proposals and decisions.
If I may conclude with these words, certainly, as part of our continuing examination of these issues, we shall take account of what has been said in this debate, Many of those who have spoken, as I indicated at the outset of my speech, did so on the basis of a wealth of personal experience in this area. Therefore, I think that this debate has been of great benefit not only to this House, and I hope to a wider public outside, but also to the Government themselves. However, as I indicated, the first and crucial point is to get right an amendment to Section 2 of the 1911 Act. As I have indicated, we shall be publishing our detailed proposals on this in the very near future.
§ 6.12 p.m.
§ Lord WIGODER
My Lords, it would not be right for me to seek to prolong this debate. We on these Benches regard it as an urgent problem that there should be a statutory right of access to public information. Having listened with great care to the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord Harris of Greenwich, I am left in some doubt as to whether it will be a Conservative Government or a Labour Government that will proceed the more slowly.
I must thank all of your Lordships who have taken part in, and indeed who have stayed to listen to, this debate. I hope and believe it has been a constructive contribution to a problem which I accept 76 is not only important but difficult. I believe that I have the opportunity of moving for Papers, but I am told that they are all stamped "Top Secret", and that I should be committing a criminal offence if they came into my possession! In those circumstances, I beg to ask your Lordships' leave to withdraw the Motion.
§ Motion for Papers, by leave, withdrawn.