§ 3.6 p.m.
§ The LORD CHANCELLOR
My Lords, I rise to move the Second Reading of the Protection of Official Information Bill. The object of this Bill is to get rid of Section 2 of the Official Secrets Act 1911 and to substitute a code which is more liberal, more intelligible, and even capable of enforcement. There is no intention to deal with Section 1 of the principal Act which deals with spying in the general sense of the word. Nor is there any intention to couple this Bill with the totally different and potentially more controversial question whether or to what extent we should attempt to imitate the Americans in giving the citizen a general right, legally enforceable through the courts, of access to Government files. What is beyond controversy is that such an attempt raises totally separate issues outside the scope of the present measure, and any attempt, however well intentioned, to take it on would, I think, wreck the chances of the present measure getting through this Session. At any rate, it forms no part at all of the legislation for which I now seek the approval of the House.
Unless I am mistaken it is now nine years since a judge said, I think at the Old Bailey, that it was time that Section 2 was pensioned off, and it is more than eight years since the Franks Committee, which was set up to achieve this object, made its report. It is no criticism that successive Governments, sailing under different political colours, have failed so far to achieve this purpose. All have concurred in the proposed objective. But this is the first time that one has given birth to actual proposed legislation. The Bill, I must explain, is not mine but that of 609 my right honourable friend the Home Secretary. He asked me to introduce it into your Lordships' House because it is highly technical. I will strive to make it intelligible. But I hope the House will forgive me in any shortcomings or possibly in any inaccuracies and be patient with what must be a long and necessarily dry as dust exposition of its contents.
The crucial question for consideration on Second Reading of the Bill is what information in the hands of the Government deserves the protection of the criminal law. I stress the word "criminal" law, because it does not affect either in one way or another the civil legal responsibilities or indeed the moral obligations of Government servants or contractors, or individual newspapers, or others. The laws of contract, the law of tort, the law affecting confidentiality, defamation, the disciplinary rules of the Civil Service, all remain unaltered by the Bill. This is not intended as a charter for people to act in a dishonourable or disloyal fashion, to give away Cabinet secrets, to break their Privy Councillor's oath, to leak unauthorised information or to spread false stories to other people's detriment. No doubt this will all go on as before, and no doubt from time to time it will give rise to civil litigation or even to criticism, but it will not as such be criminal. This is a law to limit the extent of criminal liability.
This being so, I must make one more boring general point. Except in the deplorable field of absolute offences which we must all desire to restrict to the minimum, all criminal law consists of three main components. The first is the prohibited act, sometimes referred to in somewhat illiterate Latin as the actus reus. The second is the guilty state of mind, less illiterately known as menus rea. The third, to which I shall refer only briefly in one connection but which is contained in Clauses 8 to 11 inclusive, is the classification of offences, the mode of trial and the penalties available for infringement. But with all criminal laws, always excepting absolute offences, no offence is committed unless both of the first two elements are present and, subject to certain defined exceptions, unless both are proved beyond reasonable doubt.
In the light of these generalities I can now begin to survey the field of battle. 610 After the judge suggested that Section 2 should be pensioned off, two broad schools emerged. One advocated the continuance of a sort of catch-all section protected by the Attorney General's or Director of Public Prosecution's fiat. The other recommended a precise definition of the prohibited act. The House will see from Clause 8 that there are two restrictions on prosecution for various of the offences. Both apply in one type of offence which requires both a ministerial certificate and a fiat, and in all other cases a fiat either from the Director of Public Prosecutions, in one class of offence, or the Attorney General in all the others is required before proceedings can be brought.
This, however, in the view of the Government and, I hope, in the view of other people as well, is totally inadequate as a protection for the subject, except of course against private prosecutions or ill-founded or oppressive conduct by bureaucratic authority. This is where the second side of thought comes in; the subject is entitled to know with as much precision as possible what conduct he has to avoid in order not to incur liability to prosecution. It is this with which the major part of the Bill is concerned.
Before I come to that, however, I must deal with the rather narrower concept of mens rea or guilty intent. This is of very great importance because even if the conduct concerned amounts to the prohibited act, a defendant is not guilty unless he also has a guilty mind. In the case of the ordinary citizen—dealt with under Clause 4, and this, of course, includes members of the Press—the subject must actually have known or actually had reasonable cause to believe, that the information in question was protected; and this must be proved to the maximum degree of certainty, which is that demanded by the criminal law: beyond reasonable doubt. In the case of a Crown servant or Government contractor as defined in the Bill—the definition of each can be found in Clause 14—the test is different. Before he can commit an offence at all, he must have dealt with protected information contrary to his official duty or an equivalent in the case of a contractor, dealt with under Clause 2. That is part of the prohibited act. But if he does deal with protected information contrary to his official duty, it will be for him to show that he did not believe and had 611 no reasonable cause to believe that he was dealing with protected material. In that case, however, that standard will be proof on the balance of probabilities and not beyond reasonable doubt.
I now come to what may turn out to be the real meat of the question. The Franks Report did not have a draft Bill attached to it, but it did have recommendations. Everything that has taken place since Franks has used Franks as a starting point, and this Bill is no exception. But there have been a number of successive attempts by successive Governments to define or classify what is meant by protected material. None has been absolutely identical with Franks, nor has any been exactly identical with any of the others. Again, this Bill is no exception. I do not believe there is any party politics in this—at least there ought not to be.
What is in the Bill is the product of continuing discussion in public and private. We have made use of the speech of my noble friend Lord Carr of Hadley in another place on 29th June 1973; we have made use of the White Paper of the last Government (Cmnd. 7285) published in July 1978; we have also profited from the experience gained by discussion of Mr. Clement Freud's Private Member's Bill ; and we have made use of continuing discussions both inside and outside the Government. What we have produced is the best we can think of, and we now present it to Parliament. The Franks Report (para. 14) condemned the existing law in the following terms:The present law, contained in section 2, is notable for its extreme width and for the considerable uncertainty attaching to its interpretation and enforcement. It does not carry public confidence. We propose its replacement by provisions reduced in scope and less uncertain in operation".This exactly expresses our own intention in this Bill. The Franks Committee recommended confining the protected material to a few specific areas, and this is what we have done. Clause 1(1) deals with protected information. Clause 1(2) deals with articles; that is articles in the sense of physical objects and not articles in the Press.
The Franks Committee chose as its criteria information the disclosure of which would cause serious injury to the interest of the nation. It identified information in the fields of defence and internal 612 security, foreign relations, currency and the reserves, Cabinet papers, certain information relating to the maintenance of law and order, and private confidences. In some respects we have been more liberal than the Franks Report. Like the previous Government; for instance, in their White Paper, we have not protected Cabinet papers as such, and we have not protected currency or the reserves as such.
There are however features in which we differ, not so much from the Franks definitions or objectives as the methods by which we seek to achieve them. We all recognise, for instance, that defence and intelligence should be protected. Franks, however, thought that this field should be confined to the most sensitive information only. The Bill recognises—and I think the last Government did—that intelligence often consists in the gradual accumulation of small items of information, each apparently trivial in itself. As an ex-intelligence officer, I am sure that this is right, and I hope that the House will agree with it. For one phrase we are indebted to Mr. Clement Freud. He protected information, the disclosure of which would endanger the safety of a British subject (as I still prefer to call it, although now, I fear, inaccurately). This is what we agree with, and it will be seen embodied in Clause 1(1)(a).
There is also a difference from Franks—in my judgment also an improvement—in the question of the formal classification of documents; for instance, when a document is classified secret, confidential, restricted, and so on. This has its manifest advantages, but it is an over-simplification and in our view leaves too much to the Government official who does the classifying. We have concentrated instead in Clause (1) in identification of the substance of the information, rather than its technical classification marked on the top of the document. But in Clause 12 we have dealt with classification. Its effect under Clause 12 is not conclusive. It simply puts the recipient of a document on notice of its probable character. In other words, it goes to guilty intent, rather than the prohibited act.
On the question of "serious injury", however, we have made the ministerial certificate conclusive. There are, we believe, cogent reasons for this, and we 613 agree with the Franks Report that it is a Government function, the test being political and subject to control by Parliament, rather than justiciable and subject to control by the judges; but even more so, because if we left it to the judges, it would, if they were to do their duty, be necessary to pass on semi-publicly a great deal more secret information, potentially, if not actually, damaging in order to substantiate our point. As noble Lords will see from Clause 8(1), however, this is limited to cases under Clause 1(1)(a).
I do not think that I need say much more about Clause 1(1)(b). Clause 1(1)(c) relates to the criminal law and prison security. It follows the Franks Report, and so far there has been little public dispute about it. I should perhaps have mentioned already, but it is particularly valuable here, that Clause 7—not only for Clause 1(1)(c), but for Clause 1(1)(e) and (f) as well—provides the individual with a useful defence. Notwithstanding that the information is protected, no offence is committed if the defendant shows that it was in any case available to the public. This, I hope, deals at least in part with a point attributed, I do not know whether justly or unjustly, in today's Guardian, to the noble Lord, Lord Wigoder. Clause 1(1)(d) deals with intercepts, and I do not intend to elaborate on this. It is essential to any intelligence system to protect this class of information and article.
When I come to Clause 1(1)(e) and 1(1)(f) I enter a different area of policy. There are confidences reposed in Her Majesty's Government in the foreign field by other Governments in confidence. These we consider should be protected by the criminal law. Our credibility as a repository of confidential information would obviously be undermined if it were not so. Paragraph (f) is wider than envisaged by the Franks Report, but in our estimation rightly so. Individuals are on occasion compelled by law and under a moral obligation to confide their uttermost secrets to the Government in confidence, and of course these are other occasions on which the Government acquire such secrets. In such cases the Government hold the information as a trust, and we think that it should be protected. So far the Franks Report agreed. Subsequent criticism, including 614 that by my noble friend Lord Carr of Hadley, in the speech to which I have referred, pointed out that this was technically too narrow. Not only individuals, but trading concerns, have secrets that they have to impart to Her Majesty's Government. These ought equally to be protected, and we see no reason why the public sector trading concerns should be in any worse position.
I do not think I need deal separately with Clause 2 which deals in general with "articles". The categories protected follow broadly the lines of Clause 1, which deals with information. The definition of "official information" is information (or for that matter an article) held by a Crown servant or Government contractor by virtue of his position as such. Both Crown servants and Government contractors are defined in Clause 14.
Clauses 2, 3 and 4 define the offences committed by wrongful disclosure, differentiating on the lines that I have described between Crown servants and Government contractors, on the one hand, and the ordinary individual subject, on the other. Clause 5 broadly follows the Franks Report in defining the case where officials and Government contractors fail to safeguard documents or articles. Clause 6 creates a separate offence on the lines outlined in the previous Government's White Paper protecting information. Noble Lords will note the special defence accorded to persons charged under Clause 6 by Clause 7(2).
Clause 7 therefore contains two separate and valuable defences, one fairly generally available on the lines I have indicated, and one applicable only to offences under Clause 6. I have already dealt with Clauses 8 and 12. Clauses 9, 10, 11, and 13 are technical and ancillary. Clause 14 is the definition clause, and Clause 15 applies the Bill to actions done abroad, or in the Channel Isles, or Isle of Man, or any colony, and generally to Northern Ireland. Clause 16 is the usual clause dealing with Short Title amendments and repeals, which are set out at length in the schedule. Clause 16(4) brings the Bill into operation by Statutory Instrument of the Secretary of State.
I think that I have left out one point that I should mention to the House. 615 The provisions in the Bill requiring the fiat of the Attorney-General and the Director of Public Prosecutions do not of course apply to Scotland, although they apply to Northern Ireland. The reason for this is that all prosecutions in Scotland are under the aegis of the Lord Advocate, and therefore it is not usual in Scotland, I understand—my Scottish friends will correct me if I am wrong—to include such an express provision.
The Bill has been subjected——
§ Lord AVEBURY
My Lords, if the noble and learned Lord has completed his explanation of the clauses, I wonder whether I may ask a question about Clause 1(1)(c), relating to information likely to be useful in the commission of offences. If in future a journalist discloses instructions which have been given by Government departments to civil servants—for example, the social security A code or instructions to immigration officers—which have been kept under wraps because the Government say that the disclosure of the information in them would be useful to fraudulent social security claimants, or to persons trying to evade the immigration law, would the journalist publishing that information be committing an offence?
§ The LORD CHANCELLOR
My Lords, I think that instant law is almost always bad law, but the answer would be certainly not, unless he knew that what he was doing was likely to come under the relevant clause, because that would be caught by the absence of mens rea. However, I shall ask my noble friend Lord Belstead, who is to reply to the debate, to take special note of what the noble Lord, Lord Avebury, has asked me, and give, not instant law, which I hesitate to do, but a considered reply coming from a reputable source.
My Lords, I noticed one rather violent leading article in one of the Sunday newspapers yesterday about the Bill. It proceeded by asking a number of rhetorical questions, preceded by the phrase, "What would happen if …?" Since the questions themselves were framed without reference to the criteria of the Bill, they are not capable in themselves of precise answer. Perhaps that is why they were framed in that way. But the short 616 answer is that nothing which is legal now is rendered illegal by the Bill, and a great deal which is illegal now is put outside the criminal law by the Bill. On the other hand, if the Bill is passed through the House in its present form there is nothing which remains against the criminal law which is not protected by safeguards, such as the special defences under Sections 2 and 7, the requirement of strict proof of knowledge in other cases, the fiat of the Director of Public Prosecutions and the Attorney-General, and, where the ministerial certificate is required, the ministerial certificate, which can be challenged in Parliament. I have referred to all of these in the course of my remarks.
The only question we have to settle today is whether to give the Bill a Second Reading. In answer to that question—which is, after all, a simple one—I would ask the House to take the following view. Are we to leave on the Statute Book a section which is really manifestly intolerable because it is unjust and anachronistic; and, if tolerable at all, is tolerable only because it is unenforceable and unenforced, and therefore brings the law into disrepute? Or are we to give a Second Reading to a Bill which is the fruit of discussion, public and private, in Government circles and outside them over nine years; which corresponds broadly to, and in some ways is more liberal than, the report of the Franks Committee; and which, where it does not correspond with that report, almost always corresponds with the last Government's White Paper? I would suggest that there could be only one answer to this question this afternoon, and that a negative reply would simply be a form of legislative Luddism. Other points can surely be left, either to discussion this afternoon or to the Committee and Report stages. My last appeal to the House is not to allow imagined perfectionism, either now or hereafter, to become the enemy of the good ; and in that spirit, and subject to criticisms which may be made either now or at a later opportunity, I beg to move that this Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 3.33 p.m.
§ Lord ELWYN-JONES
My Lords, the noble and learned Lord the Lord Chancellor described the Bill as highly 617 technical, and that became manifest from his own speech, which endeavoured to clarify the technicality; and we are very grateful to him for doing so. But I think it is very important that the technicalities of the Bill should not obscure the fact that it concerns a vital aspect of our democracy. Indeed, it touches its very heart. It is the balance that has to be sought and, if possible, achieved between, on the one hand, enabling people to be adequately informed about the working of government, so that they can make informed use of their rights as citizens and electors, and have a voice in determining their own fate; and, on the other hand, enabling the Government of the day to preserve secrecy where, in the national interest, it is necessary to keep some information secret. It is not an easy balance to strike.
Of course, totalitarian Governments maintain secrecy, although brave individuals sometimes break through the veil. The dictators pronounce their decisions and force them on their subjects. But a democracy like ours relies on the trust of the people, on a broad consensus between Government and governed. If that consensus were to break down, we should be in deep trouble. But all democratic Governments have found it necessary to keep some information secret. The question is: How should that secrecy be maintained, and in what aspects of government should secrecy necessarily be protected?—and I have emphasised the word "necessarily".
Since 1889 we have used the criminal law as one important means of preserving essential secrecy; and so, indeed, have most Western countries. With us, as the noble and learned Lord has pointed out, the main criminal sanctions are to be found in Sections 1 and 2 of the Official Secrets Act 1911. Section 1 deals with disclosure for a purpose prejudicial to the safety and interests of the State—the spy cases. This Bill does not touch that. Section 2, with which we are concerned, covers the unauthorised disclosure of protected information, irrespective of the discloser's purpose. It catches people who may indeed have no thought of harming their country. I agree with the view, which is inherent in the bringing forward of this separate Bill to deal with Section 2, that those provisions should 618 not appear side by side with the spy sections, the rest of the Official Secrets Act.
It is now common ground that the catch-all effect of Section 2 is no longer right, if indeed it ever was. The curious thing is that Clause 2 was not discussed at all in the parliamentary debates of 1911, and the Bill passed through the House of Commons on one August afternoon with very little discussion. If I may say so, one knows what goes on in another place on an August afternoon! The first parliamentary attack on Section 2 indeed came 28 years later, in 1939, when the Bill of that year was considered. On that occasion, the noble Lord, Lord Strabolgi, the father of my noble friend, criticised Section 2 in this House as,capable of indefinite expansion to cover … all manner of communications and information which may have been received from any one who holds or has held office under His Majesty".— [Official Report, 7/3/39; col. 31.]It is therefore perhaps fitting that this Bill should be discussed today in the presence of my noble friend the son of Lord Strabolgi who made that early protest so long ago.
My Lords, the purpose of this Bill, as the noble and learned Lord the Lord Chancellor has indicated, is to repeal Section 2. Some have taken the view that that is all that ought to have been done. The Government do not take that view; nor do I. But whether what the Government propose in this Bill to take the place of Section 2 is acceptable is another question, which we shall have to consider. It restricts criminal sanctions for unauthorised disclosure or communication, as the Lord Chancellor has pointed out, to a specified and identified range of information. The catch-all provision has gone; but the question we have to face is whether or not the Bill as it stands may still catch too much, may still unduly restrict information and withhold it from the public. Will the Bill harmfully impede the Press (as it seems to think), the media and others who supply the lifeblood of public information and knowledge? These are questions which we shall no doubt consider with care as the Bill goes through the House. It would indeed he deplorable if, in giving precision to the categories to be protected, there were produced the harder, harsher certainty of new, specific provisions, instead of the 619 old generality. It would be regrettable if new presbyter were but old priest writ large.
The previous Labour Administration considered this issue and these questions at length, and their ideas, as the noble and learned Lord has pointed out, were set out in the White Paper of July 1978 and then, in March of this year, in a Green Paper entitled Open Government. In the Green Paper one sees the following:The Government recognises that the ' catchall ' effect of Section 2 is no longer right and intends that it should be replaced by provisions which would restrict criminal sanctions for unauthorised disclosure or communication to a strictly limited range of information. This reform will not of itself increase the flow of information from Government, since the criminal law is concerned only with what should not be disclosed, and open government is concerned with what should be disclosed. And matters whose unauthorised disclosure would attract criminal sanctions would be among matters exempted from disclosure under any open government system. But the Government sees reform of Section 2 as an essential step in creating a climate in which greater openness can prevail".The White Paper proposals were, as the noble and learned Lord has said, based on the recommendations of the Franks Committee. That was a distinguished committee under distinguished chairmanship and membership—Members of Parliament, lawyers, former civil servants and strong representation from Fleet Street and broadcasting. The report was unanimous and, so far as I can recollect, was well received in 1972 in Fleet Street as elsewhere.
The White Paper proposals that I have referred to now (and as the passage I have quoted indicated) admitted that reform of Section 2 would not of itself increase the flow of information from the Government. But, as I have read, we did see reform as an essential step, a precursor to greater openness in government. That reform was to be linked with provisions for greater public access to official documents; and the relevant portion of the Green Paper makes that clear. It explains the major argument for a public right of access; namely, that those seeking information have the right to obtain what they want, when they want it, subject to clear exceptions, rather than having to wait on Government initiative or discretion to release material. And the broad approach 620 to the matter which was to be undertaken by the Government in legislation is set out in paragraph 59 of the Green Paper:In the Government's view the essential requirements of any scheme of access to official information is that it should satisfy public demand so far as is reasonable and practicable; that it should be fully compatible with constitutional and Parliamentary systems of this country; and that the costs should be commensurate with the public benefit".Then, in the Labour Manifesto of 1979, an undertaking was given that the Government would:Introduce a Freedom of Information Bill to provide a system of open government, and enact the proposals made by the Government in its White Paper to reform Section Two …".The noble and learned Lord has not lifted the veil in any respect on what the Government contemplate by way of follow-up to the limited purposes of the present Bill. He has said—and no doubt it may well be the case—that to attach to this Bill wider provisions on freedom of information would be time-consuming. But I think that we on this side of the House would be grateful if that "reputable source", as he has been so engagingly described the noble Lord, Lord Belstead, would lift the veil and tell us what ideas the Government have in mind in this field because we deem it to be quite crucial. Merely at this stage to deal with Section 2 without coping with and providing for the clamant demand from the public for greater access to official information will not do. I look forward with enthusiasm to hearing him at the conclusion of this debate unveil what the Government have in mind.
Coming to Section 2 of the Act itself, the noble and learned Lord has read some appropriate passages from the report. It said for instance:We found section 2 a mess. Its scope is enormously wide. Any law which impinges on the freedom of information in a democracy should be much more tightly drawn".And it adds:A catch-all provision is saved from absurdity in operation only by the sparing exercise of the Attorney General's discretion to prosecute".My Lords, in my six years in office as Attorney General there were only nine such prosecutions. Indeed, some serious commentators—and I think that one of my successors, a Conservative Attorney General, expressed this view —have said that because of the great 621 difficulties in the way of identifying and defining with certainty those kinds of official information which should be covered, it would be preferable, on balance, to retain a catch-all section, together with the Attorney General's control over prosecution, as the lesser of two evils. I am bound to admit that one of the prosecutions which I authorised brought me into very bad trouble; but perhaps it is not desirable to retraverse that particular ground, although if it is traversed I should be happy to deal with it.
That is one view that was taken. But the Franks Report found that the very width of the Attorney General's discretion and the inevitably selective way in which it is exercised—that is the way the report put it—gives rise to considerable unease.
I have referred to the tension between openness and secrecy and I think that the House will be disposed to agree with the conclusion of Franks that the catch-all provision clearly goes too far towards the protection of secrecy. But to repeal it without replacement would work the opposite way, as I have said. The proper balance between openness and secrecy, I believe, requires a reformed law. The question that we face in considering this Bill is this. Do its provisions achieve that balance satisfactorily? The almost universal reaction of the Press has been an emphatic "No" to that question. The Bill has had a bad Press without exception, I believe, on both Right and Left of the political spectrum. It has been called a threat to freedom. There have been great headlines:How they plan to keep us in the darkand others such.
Of course, a misunderstanding, even outright conflict, between Press and Government and, indeed, even between Parliament and Government, has arisen before from time to time and may not necessarily be bad. But the relationships between these great institutions in our democracy are very delicate and should not be damaged. The balance between them is not capable of legalistic refinement but I believe that mutual trust between Government, the Press and the media is something for which each side should strive. I think that a considerable responsibility now lies on this House—a responsibility which it is well able to 622 undertake—to examine carefully how justified are the fears of the Press and responsible bodies of opinion about the provisions of the Bill, and this we shall do during the various stages of the Bill.
It may be fitting within the time which is available to me if I indicate at this stage some of the main areas, as I see it, of legitimate concern. Clause 1 as the noble and learned Lord the Lord Chancellor has explained, describes the information to which the Act applies, the protected information, disclosure of which attracts the criminal sanctions which are set out in the Bill. It falls, as the noble and learned Lord has told us, and as noble Lords will see from the Bill, into six categories. Category (a) is the first and refers to information relating to defence or international relations, the unauthorised disclosure of which would be likely to cause serious injury to the interests of the nation or endanger the safety of a citizen of the United Kingdom and colonies. Your Lordships will see the test of that matter is the likelihood to cause serious injury to the interests of the nation or endanger the safety of its citizens. But that test is conclusively decided not by evidence to that effect to be given in court, but simply by ministerial certification under the provisions of Clauses 8 and 9 of the Bill.
Clause 8 provides:A prosecution for an offence under this Act in respect of information to which section 1(1)(a) above or an article to which section 1(2)(a) above applies shall not be instituted unless it has been certified by a Minister of the Crown that at the time of the alleged offence unauthorised disclosure of the information or article would have been likely to cause serious injury to the interests of the nation"—et cetera. Clause 9 provides:On a prosecution relating to any information or article, a certificate under section 8(1) above that, at the time of the alleged offence, unauthorised disclosure of the information or article would have been likely to cause serious injury to the interests of the nation or endanger the safety of a citizen of the United Kingdom and Colonies, or both, shall be conclusive evidence of that fact".So the main issue in a trial in a certain sense is decided before the trial begins by the Minister's certificate.
The second category, (b), is information relating to security or intelligence. That is a broad category. I do not think that it is expressly provided for in that way in Franks, and it is provided for separately 623 from defence and international relations. It is subject in Clause 1(1)(a) to no statutory test either as to seriousness or damage, and it would seem that any information about security and intelligence is protected whether or not it is already common knowledge.
A defence in respect of disclosure of information in Clause 1(1)(a), (b) and (d)—that is to say, defence, security or intelligence and interceptions—that before the time of the alleged offence the information had been available or had become available on request to the public or a section of the public, is apparently excluded for those categories of information. The other categories, (c), (e) and (f) are also covered.
The provisions of Clause 7 are an important part of the Bill. It reads as follows:It shall be a defence for a person charged with an offence under section 2, 3, 4 or 5 above in relation to information specified in section 1(1)(c), (e) or (f)"—not, as your Lordships' will see, (a), (b) or (d)—to prove that before the time of the alleged offence the information had been made available, or had become available on request, to the public or a section of the public".We shall want to examine carefully why that defence should be excluded from those in many respects graver aspects of the information provisions. Clause 7 itself is far from clear even to the categories to which it refers. It refers to "made available One wonders: made available by whom? Made available where? Does it cover Press publications, Press information, or does it only cover information officially made available within the United Kingdom? Perhaps the noble Lord at some convenient time —not necessarily today—will enlighten the House about those matters.
An important departure from Franks has been made in respect of the three important categories of defence, international relations, security and intelligence information. The Franks report proposed that appropriate classification should be the test of serious injury. I quote:The prosecution should have to satisfy the court that the information fell within a category and that it was so classified, but the court should not be concerned with the effect of the disclosure on the interests of the nation".624 But the classification was the basis and the key to the identification of what ought to be protected.
However, so far as I can understand in this Bill in relation to the categories (a), (b) and (d) that are found in Clause 1 protection is quite separate and divorced from classification, and classification is no more than an indication of serious injury and not necessary for the protection of the information. It would seem that a Minister could give a certificate for prosecution under Clauses 8 and 9 for the disclosure of information regarding defence, et cetera, which was not originally classified.
If that is so—and I believe it to be so from the language of the Bill—it would seem to undermine the approach of Franks, which was to create certainty as to what was covered by the process of classification to enable a civil servant, a journalist or a member of the public to know where he is in regard to these documents. Provision for classification of documents is made in Clauses 12 and 13 of the Bill. The system of classification is to be the overall responsibility of the Minister for the Civil Service, the Prime Minister—a small addition to her already enormously onerous duties.
The actual classification is to be done by what is described as the responsible authority. That means, according to Clause 12, any person designated as a responsible authority by a person prescribed in the regulations the Minister for the Civil Service may make. We are not told who that person would be and I would ask whether the responsible authorities must necessarily be within Government Departments proper or whether public corporations or Government contractors have classification powers. If that were so, it would mean there would be no control over the classification function either by Parliament or by the courts.
As to Clause 1(e) and 1(f), neither the Franks Report nor the White Paper proposed a category of official matter obtained from foreign governments or international governmental organisations or bodies carrying on nationalised industries. At the proper time we will examine the reasons which the Government may give for the inclusion of those categories.
I should have mentioned in the earlier context that, in regard to certification, 625 I think I am right in saying it was proposed that it was not only the Minister who should be involved in examining the appropriateness of the conclusive certificate but that the Attorney-General should also be involved. I also recollect that in the discussion of the Freedom of Information Bill in the House of Commons it was proposed by the then Conservative Front-Bench spokesman that a security commission should be involved in the crucial process of certification.
My Lords, I have taken already more time than I should have done, but these are important considerations. It is a crucially important Bill. I am bound to say we think that before it passes on its way to another place it ought to undergo considerable improvements if the protection of the individual, of the Press and of the public is to be adequately looked after.
§ 4.2 p.m.
§ Lord WIGODER
My Lords, my noble friends on these Benches will also want to express gratitude to the noble and learned Lord who sits on the Woolsack for the careful way in which he explained the terms of this Bill to your Lordships' House. It appears only fitting that, after the barrage of criticism this Bill has received since its publication a fortnight ago, there should at last have been one voice raised in its favour.
Of course, this Bill makes no attempt to deal with Section 1 of the Official Secrets Act. It is perhaps a pity that the opportunity has not been taken to amend some of the more objectionable provisions of that section. This Bill deals solely with Section 2. I think that the first observation it is perhaps worth making is this: so far as I know—and if I am wrong on the facts I will be corrected—during the last five years of the Labour Government one person was prosecuted under Section 2 of the Act and three people, who happened to have algebraical surnames which will be familiar to your Lordships, were prosecuted under both Sections 1 and 2. That was the only use made of Section 2 of the Act throughout the last five years.
The reasons were two-fold. First, as has been pointed out by the noble and learned Lord who sits on the Woolsack, Section 2 was discredited as being a 626 catch-all section under which it was an offence for the Press to publish, for example, details of the time at which the head of MI5 had his morning cup of coffee. There was no defence if that information was given in the Press; and when the Act clearly became so broadly based as that, it lost a great deal of its point and of its credibility.
Secondly, there was a further difficulty, which was that the construction of Section 2 became of considerable doubt. It became of doubt in the Sunday Telegraph case, where the noble Lord, Lord Hutchinson of Lullington, and I had the pleasure of "slugging it out" side by side as to what was the proper construction of that section. It became clear that, so far as the receivers of information and the subsequent transmitters of that information were concerned, the law was in a state of considerable doubt. In the result, for those two reasons, Section 2 fell into disrepute and into disuse for those five years.
The first observation I really want to make is this: the country survived. Scandals were exposed, investigative journalism took place, Governments were embarrassed—and quite right too: that is what Governments are for—and all that happened without the fabric of our society in any way collapsing. Indeed, this perhaps gives weight to the contention put forward by the noble Lord, Lord Goodman, in an earlier debate on this topic, when he suggested that perhaps the simplest course in relation to Section 2 of the Act was to repeal it altogether and to leave it. That course is not being taken. The course that is being taken is that a reform of the Act should be effected in the way set out in this Bill. It must, therefore, be made as clear as can be that the inevitable effect of this reform, however liberal it may be, will be that once the law in Section 2 is clarified there are going to be more and not less prosecutions for the type of offence which is covered by this section. There are going to be not merely more, but a great many more, prosecutions of civil servants and of the Press, however liberal the Government may proclaim their intentions to be.
It was for that reason that we on these Benches always made it clear when the White Paper of the previous Government, which is largely responsible for this Bill, 627 was being debated in your Lordships' House, that we could summon up no enthusiasm for reforms of this nature unless they were coupled with a commitment to more open government and freedom of information, so that the inevitably repressive effect that this legislation is bound to have could at least be counter-balanced by helping to ensure that we would have in this country a society of citizens who would be encouraged to participate in the formation of policy, because they had in their possession sensible and well-informed documentation and could take part in meaningful discussions about it. We note to our great regret that the Government have decided not to couple what we regard as an essential combination, namely, the reform of Section 2 and a move towards freedom of information.
I should like, if I may, to second the call of the noble and learned Lord, Lord Elwyn-Jones, and to ask the noble Lord, Lord Belstead, when he replies to indicate whether, in the Conservative Government's oft-stated commitment to freedom, they include freedom of information. If they do, I should like to ask the noble Lord, Lord Belstead, whether he will be good enough to state precisely what steps the Government are taking in order to bring about that situation.
This Bill, as I have said, ostensibly relaxes the existing controls, although it will inevitably have the effect of causing more prosecutions. It endeavours to do that by covering not the whole of official information but only the six categories set out in Clause 1 of this Bill. I would, if I may respectfully do so, applaud the Government for not including categories such as Cabinet papers per se or budgetary and monetary information, which might perhaps have been included. Nevertheless, although this Bill restricts the categories of information to the six set out in Clause 1, it does so in what I believe on examination turns out to be a most disturbingly repressive manner. I do not want to make Committee points at this stage, but I must give some indications of what I mean by that observation in order to justify it.
It is clear under Clause 1(1)(a), combined of course with Clause 4, that both civil servants and journalists, and indeed 628 private citizens, are at risk of prosecution on the mere say so of the Minister. If the House, that we could summon up no Minister certifies that information related to defence or international relations would be likely to cause serious injury by the unauthorised disclosure of it, then that is that and the civil servant, the journalist and the citizen has, for practical purposes no defence whatsoever. He cannot challenge the Minister's certificate. It is not even a defence to be able to show that the Minister's certificate is absurd. If a journalist publishes an item about our defence in a newspaper, and the Minister chooses to certify in accordance with Clause 1(1)(a), it would be no defence for that journalist to demonstrate that he lifted the whole of the article from the Herald Tribune of the previous week, because, ludicrous though it may sound, Clause 7 which deals with that issue does not provide any defence under Clause 1(1)(a) or 1(1)(b) to the effect that the information is already commonly known. Although this may sound a slightly fanciful issue or a fanciful defence it is not really, because both in the Sunday Telegraph case and in the ABC case precisely that issue was raised.
Furthermore,—and I agree again with the noble Lord, Lord Elwyn-Jones—if the object of this legislation is, as the noble and learned Lord on the Woolsack said, that a person, such as a journalist, should know with precision the risks he was running, how can that be said of a situation in which the Minister is entitled to certify under Clause 1(1)(a) information which has never been classified under Clause 12, or, conversely entitled to say of information which has been classified under Clause 12, "I do not regard this as information coming within Clause 1(1)(a)"?
So far as Clause 1(1)(b) is concerned—that is, information relating to security or intelligence—the situation is, if anything, worse. There is not even the safeguard, for what it is worth, that the Minister has to certify that the disclosure might cause serious injury. It is any information relating to security or intelligence, and "security or intelligence" is defined in Clause 14 in the widest possible way. It follows that if a journalist publishes any matter at all which he knows relates to security or intelligence, he must be guilty of an offence, even if he publishes the 629 time at which the head of MI5 has his morning coffee. That would be clearly covered by this legislation. That is the advance which the Government claim is being made in the course of their clarification and their relaxation of the existing law.
So far as Clause 1(1)(c) is concerned, which includes information that would be likely to impede the apprehension of suspected offenders, I am again perturbed that that might be used against journalists who were carrying out perfectly genuine, serious responsible investigative work into the commission of possible criminal offences. Much of value has been done by journalists in recent years and I can see that clause being used, if a Government chose to, against them.
Clause 1(1)(d) deserves just a look in passing. That includes not only,information obtained by reason of the interception of postal packets or telecommunication conversationsbut also,information relating to the obtaining of information by reason of any such interception".As I understand that paragraph—and I do not want to put forward too many hypothetical cases and to ask the noble Lord, Lord Belstead, to deal with them when he comes to reply—if my telephone is being tapped because I am such a dangerous radical, and I disclose to the Press that my telephone is being tapped, then I am committing an offence under this Bill because I am giving information that is relating to the obtaining of information. There we are.
I would add only one other comment about one of these six categories, and that is the one relating to Clause 1(1)(f) which is information obtained from any persons mentioned in subsection (4), held by a Crown servant or Government contractor on terms or in circumstances requiring it to be held in confidence. Again, as I read that paragraph combined with subsection (4), and also combined with Clause 4, the Guardian newspaper would have clearly committed a criminal offence when it recently disclosed the communication on jury vetting that had come into its possession; and I believe that that newspaper performed an invaluable service in so doing. I raise these matters simply as an indication that this legislation is a great deal more 630 repressive than was perhaps thought when this Bill was first put forward.
I add only two other observations about this Bill at this stage, and about certain clauses of it. Clause 2(2)(a) places the onus of proof on the defence. That of course happens from time to time in the 1911 Official Secrets Act and is not, in itself, entirely surprising. But it places a burden of proof on a defendant to show not simply that he did not believe that the information was information to which the Act applied, but also that he had no reasonable cause to believe it. I believe that that is putting on a defendant a very high burden of a rather unusual nature.
Finally, as to the specific clauses of this Bill, may I mention Clause 12, which deals with classification, "Where in the opinion of the responsible authority …"Who is the responsible authority is completely unclear. So far as I can see from this Bill, it can be somebody so junior as to be in no way responsible and to have no authority. But if he is designated a responsible authority by the Minister, he has the duty and the burden of declaring what information or documents would be likely to cause serious injury if disclosed. I suggest that that, again, is an impossible burden to put on a civil servant. It would inevitably lead to the classification of far more documents than if it were done by somebody in a position of real authority, and even, dare I say it, of responsibility to Parliament. Surely the responsibility for the classifying of documents, where these consequences may follow, must be that of the Minister. There must be some review process by which the Minister's decision can be considered, and I hasten to say that I do not read the words in Clause 13(2)(c) as providing for any such review process.
I hope your Lordships will not think that those are simply Committee points that I raise in looking broadly at the terms of this Bill. Inevitably, they lead me to have serious reservations about it. I say at once that I give the Government the benefit of the doubt. I always give Governments the benefit of the doubt, although experience repeatedly proves me wrong. But I do give them the benefit of the doubt of assuming that they set out on this exercise with a genuine desire to tidy up and to liberalise the law. I 631 doubt whether they realised the repressive consequences that will flow from the way in which this Bill is drafted.
In making these observations I am, of course, very much aware that there will come into being, in the course of the next few months, a bandwagon of opposition to this Bill, upon which many people will leap who have no concern whatever for the security of this country or for the defence of the realm. I hope that those of us who wish to put forward constructive suggestions for the improvement of this Bill will not be tarred with that brush.
I hope it will be accepted that there are many of us who recognise that the problem posed by the Bill is one of balance. It is a problem of trying to reconcile the measures that should be taken to protect the safety of the nation and our security with the vital necessity of having a free Press and with the right of ordinary citizens to know as much as possible of what is going on in the quarters of Government. I have to suggest that this balance is not right in the Bill as it is now drafted. I am encouraged by the concluding words of the noble and learned Lord on the Woolsack: that his mind is by no means closed on this matter and that when we come to a later stage of the Bill he will be willing and anxious, on behalf of the Government, to listen to all constructive suggestions that can be put to improve the Bill and eventually to get the balance right.
§ 4.22 p.m.
Lord CAMPBELL of CROY
My Lords, I thank my noble and learned friend for introducing this Bill and for his explanation of its purposes. I agree with my noble and learned friend the Lord Chancellor that we need to replace Section 2 of the 1911 Act. I propose to make some brief comments and to put two questions to the Government. In doing this, I am very conscious that I am following in the debate three leading lawyers and three of the most brilliant legal minds in the land. I shall accordingly concentrate strictly on the administrative side of this question. On prosecutions, though, my noble and learned friend invited someone with experience of Scottish administration to confirm the 632 position in Scotland. If I may do so modestly, so far as I know the position still is that prosecutions in Scotland are initiated only by the Lord Advocate and pursued through the procurator fiscal service. The authority of the Director of Public Prosecutions does not extend North of the Border.
I should like to add some views on what I feel are the undesirable effects of Section 2 as it has existed since 1911. Section 2, in its envelopment of virtually every matter dealt with within departments unless and until officially made public, was the lazy way of protecting secret information. I can understand the frustration of the Press and broadcasting organisations about it. It is ridiculous in its precise technical effect. For example, it could envelop disclosure of the method by which morning tea"elevenses"—is dispensed in a department. More seriously, it could envelop the disclosure of consideration of whether British Summer-Time should be chanced to British Standard Time, a matter of concern to the population at large and one that was decided nine years ago by a free vote in another place. I mention that example because I think it may strike a chord with my noble and learned friend the Lord Chancellor, as he had been Shadow Home Secretary and I had been Shadow Secretary of State for Scotland concerned with home affairs in Scotland, dealing together with that subject.
Section 2 has been suffocating in its totally enveloping effect. It has been described as an omnibus provision. It has also been described as a blunderbuss. It has been more. I would describe it as a sawn-off punt gun, scattering shot with a spread far wider than required, peppering not only all feathered life but also every inoffensive object in its wide are—harmless bees and butterflies, for example —and being quite indiscriminate in its impact.
I hope that the House will allow me to draw upon some administrative experience from the past. I signed the Official Secrets Act as an official, a professional diplomatist. In addition, during that period, in the mid-1950s, I was assigned for two years from the Foreign Office to be Private Secretary to the Secretary to the Cabinet, then Sir Norman Brook, later Lord Normanbrook. For a short 633 period I worked also for Sir Edward Bridges, as he then was. For both, who later joined your Lordships' House, I have the greatest admiration and I do not presume to reflect in any way their views. This was a long time ago but it enabled me to have a worm's eye view of the Whitehall system and the papers involved.
During that work, and in the Diplomatic Service, as it is now again called, I felt that the whole method of protecting papers on confidential matters was unsatisfactory. It attempted complete prohibition on disclosure and yet leaks of confidential information from time to time occurred. I have no doubt that embarrassing disclosures will continue to be made from time to time. They may be embarrassing to individuals, to the Government of the day or to the Opposition, but what is really important, what surely matters most, is that they should not endanger the safety of the country or of individuals, or undermine the system of Government. It is on that second point that I wish to put my questions.
First let me deal with the position of civil servants, on the collective responsibility of the Cabinet and the advice given to Ministers. This also applies to members of the Armed Forces, particularly when they are serving in the Ministry of Defence. I know that the principle of collective responsibility of the Cabinet has been said to have been somewhat eroded of late—indeed, some would say dented. There can be cases where the Minister responsible for a particular subject is in a minority in the Cabinet. The majority decision is adopted and of course, following our principle of Cabinet government, the whole Cabinet publicly supports what has been decided. This means that the Minister who was opposing the decision is the one who has to announce it and defend it. Of course it will undermine the authority of Government if information is deliberately leaked that that Minister was opposed to the decision. That is one example.
On the question of advice given to Ministers, civil servants offer advice and it can be rejected. Ministers, or the Government as a whole, can decide to do something quite different. The nature of that advice has always been confidential, because, again, civil servants have to support the decision that has been taken— 634 and they always have, loyally. This is a matter which should be dealt with by code or by discipline. In my personal experience, the traditions of our public service and its practice have probably been the ruling factors. My noble and learned friend the Lord Chancellor mentioned Civil Service discipline in this respect.
There is certainly nothing that I can see in the Bill to deal with these matters. I should therefore be grateful if, when my noble friend Lord Belstead winds up the debate, he could tell us how these matters are to be covered in the future, unless our whole system of Cabinet government is to be changed, and I cannot believe that that is to be part of the Bill's intention. I believe this is important because deliberate leaks that have occurred in the past are usually slanted or are only part of the story. Very often they have been leaked in order to give credence to one side of an argument or to tilt the balance. The public may then be misinformed or indeed misled by such leaks. The only remedy that is available to a Government or a department in that situation is to release the whole of the story. As I have indicated, that may undermine our whole system of government—the system of collective responsibility for decisions and the loyalty of civil servants who may have recommended against those decisions at earlier stages.
My second question is on classification and is particularly related to Clause 13 Under that clause, regulations are to be passed by both Houses of Parliament. Will that be the occasion, after those regulations have been passed, for a complete overhaul of the system of classification of documents throughout the Government in all the departments? I think this question is related to the one just put by the noble Lord, Lord Wigoder, about classification. I believe that for the new classification system to work successfully it must be integrated with the Government system and that in turn has to have the authority of the Ministers concerned. So I ask whether it is the intention to have an overhaul of the classification system as a whole once Parliament has accepted the proposed regulations.
Before concluding, I suggest that if this Bill is passed it should have a trial period to see how it works in practice and that the Government should not close its 635 mind to changes or additions being made after a reasonable period. For example, a point has been raised—I heard it being put by Mr. Harold Evans of the Sunday Times on the radio today after the one o'clock news—about the description of information received from foreign Governments or international organisations. I think he has a point that that particular category of information could be abused in the future if it is not very carefully watched. A Government could simply ban any information from certain sources even though there was really no secrecy or confidentiality about it. With those reservations, I welcome the proposed disappearance of Section 2 of the 1911 Act.
§ 4.33 p.m.
§ Lord ARDWICK
My Lords, since I have recently become the chairman of the Press Freedom Committee of the Commonwealth Press Union perhaps I had better explain straight away that what I am saying today is entirely a personal view. It is 40 years since I and fellow members of the National Union of Journalists demonstrated in the streets against the Official Secrets Act. What we had against Mr. Neville Chamberlain's Government at that particular moment on official secrets, I cannot well remember but I do remember that we were extremely upset about the situation; and ever since then the Act has been under intermittent attack from journalists, from trade unionists and from lawyers with a deep concern for civil liberties. In recent years the criticism has grown and grown as Government have come to have a greater impact upon our daily lives—often a beneficial impact although sometimes a restrictive one—so that people have felt an increasing need to find out what the Government are really doing, what they are thinking, and how their agents are acting when they are out of the public view. So the arrogant secretiveness of the old Establishment is no longer tolerable and, perhaps rather reluctantly, Governments have come to accept this.
The question of what should be open to the public, and what in the public interest should not be revealed, is not really in conflict between the two major parties that have held power in turn since the war. Nor is it a Left versus a Right issue; 636 it is a conflict between the governors of our society and the rest of us, the governed. The champions of the governed are to be found on the Back Benches of Parliament and in a vigilant newspaper Press. In recent years the newspapers have recovered and intensified their old zest for investigation, for probing into dark corners and asking the kind of questions which Governments hate to hear and sometimes are loath to answer. In recent years newspapers have devoted increased resources and developed new techniques to perform this role, which is essential to any democracy, more effectively than ever.
The difficulties in the way of the Press in Britain are formidable. A more severe view of libel is taken in Britain than in any other country I know. The law of contempt is still confusing, and in the Official Secrets Act there is still the absurd and notorious Section 2. This Section 2 was, I think, described by the late Richard Crossman as "a mangy old sheep". It has not been administered repressively ; it is however a useful weapon to deter, if not to smite, or it is a wall behind which officialdom can shelter when under assault. Perhaps its most profound effect has been to reflect and to fortify the tradition of secrecy among British officials and British Governments.
When we newspaper men compare our situation with that in America we are told, "You must take into account the British Parliamentary system: the presence of Ministers in Parliament who can be questioned by Members of Parliament enjoying the widest privilege". This, rather than the Press, is the palladium of our British liberties, so we are told. It is a strong argument but it is not an overwhelming one. Members of Parliament depend heavily for their effectiveness in probing and challenging Ministers of the Crown on the reports and investigations of newspapers. An Opposition deprived of newspapers would be in a sad way indeed. An Opposition stimulated and informed by a Press with sufficient freedom to probe and disclose would gain in democratic effectiveness.
It is in accord with the current climate that after much debate and long inquiry the Government should produce a Bill to sweep away Section 2. It has been said that it replaces a blunderbuss with an 637 Armalite rifle. That is exactly what newspapers, who will be on the receiving end, now fear. It is much easier to face a blunderbuss than to face an Armalite rifle. To change the metaphor, the Government are replacing a wide and unwieldy net with a fine mesh for a handier net which will let the small fry get away but which will catch the bigger fish at need. That is what is upsetting the newspapers. There is little gratitude in Fleet Street for what the Government propose. Within a few days of the publication of the Bill it has been critically assessed not only by the Sunday newspaper which the noble and learned Lord the Lord Chancellor mentioned, but by the Guardian and the Economist and by newspapers which the Government may look upon as friends, such as the Daily Mail and the Sunday Telegraph. The Guardian even goes so far as to say that the Bill is—in certain essential provisions a far clearer assault on the freedom of the press than anything contrived by Mr. Michael Foot or intended by the National Union of Journalists three years ago".Perhaps this argument is not so compelling as it might be since I think that the noble Lord, Lord Goodman, and I, and others, must now admit that our fears of three years ago, happily, have not been borne out.
Mr. Stewart Patrick in the Daily Mail last Friday was even more scathing. He said:It might seem difficult to imagine a replacement which is worse than Section 2, but this Government has managed it".With tongue in cheek he commends the Government on the Bill's honesty:It is honestly and unashamedly devoted to the belief that Government is a secret process and that the Press and the public should be told only what Whitehall considers good for them".There is, I fear, a danger of the public becoming confused by the row about this Bill. The noble and learned Lord the Lord Chancellor did his best to set it straight earlier on.
Two demands are being made by the Press and by others. The first is that the infinitely wide provisions of Section 2 should be swept away and in their place protection should be given to the narrow range of subjects on which there is universal agreement that protection is vital to the nation and to its citizens. But items of information which would cease, under these provisions to be protected by the 638 criminal law, would not necessarily be available to the public. So what is needed is further legislation, an official freedom of information Bill which would establish a general right of access to official documents for members of the public and indeed provide facilities for such access. Mr. Freud's Private Member's Bill attempted both to do this and drastically to reform or replace Section 2 at one and the same time. So now the Government are being reproached for failing to follow the Freudian path. Meanwhile Mr. Meacher in another place is following in Mr. Freud's footsteps.
It is obvious that the Government are going to have a hard time in Parliament and in the Press, and they would smooth their own path, I think, if they were to promise that they would follow this Bill with a freedom of information Bill and find time for it in the next Session. I do not think it would be nearly so difficult as the noble and learned Lord who sits on the Woolsack has suggested. The exemptions will have been fairly clearly defined in the Bill now before us. But a promise of this kind, even if given, would not allay the fears that there are about the Bill which is before us, and it would not dissipate the bitter antagonism which is being built up.
There is one provision in the Bill which excites universal scorn among journalists. It is not just that the Minister in a prosecution for disclosure concerning defence or international relations may present a certificate to the court saying that disclosure is likely to cause serious injury to the interests of the nation et cetera; it is not only that the Minister is given such a right, subject to the approval of the Attorney-General, but that the certificate will be conclusive evidence of that fact. The last five words, "conclusive evidence of that fact", are a quotation from the Bill. But we are not dealing with a fact; we are dealing with what the Minister considers to be likely to happen, we are dealing with a Minister's educated guess or his hunch, and all the court can then decide is whether the accused did it. If he did, that seems to be the end of it; if he did it, if he knew what he was doing, he has no defence.
I hope that noble Lords who are also learned Lords will say what they think about this. Is there any good reason 639 why the court should not decide whether the likelihood of serious injury to the national interest as conceived by the Minister is a reality? No doubt in most cases the Minister and the Attorney-General would have acted correctly and would be able to show that the certificate was valid. But we all know that there are times when the nerves of Governments are frayed and there are times when Ministers have a defective sense of judgment. It is on subjects such as defence and security that Governments can most easily lose their perspective, indeed sometimes make asses of themselves.
There are other worrying aspects of the Bill, especially the very wide provisions about security and intelligence and wiretapping and so forth, about which noble Lords have spoken. I hope that this Bill will get deep and unhurried examination in Committee in this House. It is not a Bill that should arouse the Party passions. It does not need really to command the loyalty of supporters of the Government nor the antagonism of supporters of the Opposition. There is a real problem of balancing the need for secrecy and the need for disclosure, and it is one which the knowledge and the experience of this House is singularly fitted to tackle. I hope that the Government, who have, I believe, commitments to open government, will show some flexibility on this Bill before it goes to another place.
§ 4.45 p.m.
§ Lord GOODMAN
My Lords, may I say that I am very pleased indeed that the noble Lord, Lord Ardwick, made such a notable contribution, I think I am right in saying that he is the first speaker who can claim to speak with great authority on behalf of the Press. He disowned any official mandate in that behalf, and I must do the same. I was for some seven years the chairman of the Newspaper Publishers' Association. I have ceased to be, but I still have a nostalgic and sentimental regard for my previous associates, and I must confess to a slight disappointment that they are so ill-represented here this afternoon. I see the noble Lord, Lord Gibson, who I have no doubt will make a valiant and worthwhile contribution, but when I think of the number of Members of this House 640 who ought to be available to speak on this matter, which is of such signal concern to the Press, it is a slight disappointment that they have found pressing engagements elsewhere.
I should like to say a word of congratulation, which I think comes rather rarely, to the draftsmen of this Bill. I have on previous occasions spoken rather harshly about them. I think this is a skilfully drafted Bill in a situation of quite exceptional difficulty, because, as several noble Lords have said, it is a question of maintaining the balance between what you can freely allow and what must be suppressed on behalf of the nation. I very much associate myself with what the noble Lord, Lord Wigoder, said. I do not think anyone speaking critically of this Bill will be suspected of believing that access to all our information should be given to potential enemies and potential rivals, to the detriment of the country. It would, I think, be a disservice indeed if any word spoken here were likely to create an impression that we in this House do not regard sufficiently seriously the need to maintain those secrets which are really secret and which are crucial to the welfare of the nation.
Having said that, perhaps I may be permitted a recollection of what created the original Official Secrets Act, which may be of some value in enabling us to recognise the exceptional difficulty of maintaining the balance. I do not think any of us was alive at the time, but my vague recollection of the situation from reading is that the first Act came into existence because of a disclosure by the Globe newspaper of a secret annexure to the Treaty of Berlin. An inquiry had been made about that matter, I think in this House, to the Foreign Minister, Lord Salisbury, and my recollection is that he flatly denied that there was such an annexure.
It has been thought that that was a discreditable thing to do. I do not share that view. There must obviously be times when it may be necessary for a Government Minister to tell an untruth if it is a white untruth. But what then happened was that a Foreign Office clerk, known as a Foreign Office "tenpenny" because he was paid 10d. an hour, having copied that particular annexure, copied it again and took it to the Globe newspaper, and is 641 believed, although there was some suspicion to the contrary, to have received no payment. He was prosecuted, but he could be prosecuted only for theft of the paper. He had had the providence to supply his own paper, so that he was acquitted. This poses a splendid example of the problem that exists.
Clearly Government must be protected from disclosures of this kind. Is the public entitled to know whether a Minister has told a blatant untruth and informed the world at large that no such annexure existed? My own view would be that the bias is on the side of the Government. But it is a difficult question, and I give this example because it demonstrates to the House the precise nature of the difficulty. I do not believe that any Act could be drafted that would sufficiently ensure that delinquents are caught by its net that did not extend more widely than its precise need. I think one must accept that if the Act is to be adequate it must be perhaps more than adequate. This I am perfectly prepared to accept.
Having accepted that, may I be permitted to say this. The noble and learned Lord the Lord Chancellor invited us to consider whether it would be appropriate to give a Second Reading to this Bill. I am in the happy position, having been taught long ago never to answer a question that one did not need to answer, as a humble Cross-Bencher in this House, of knowing that my decision on that matter is unimportant. But I would venture to say that in my view this Bill will require a great deal of work in Committee. Obviously, it cannot reach Committee unless it has a Second Reading. Having said that I shall refer no more to the question raised by the noble and learned Lord the Lord Chancellor. However, I think that there are a number of matters of principle—and it would be wrong to enter into the detail at this stage—that one might safely mention.
First, there is the question of the Freedom of Information Bill which has been much mooted abroad. I would not wish to encourage the complacency of the Opposition in this matter, by belief that anyone regards them as totally virtuous in their behaviour. They had many years in which to introduce an amended Official Secrets Bill, a Freedom of Information Bill or any type of Bill they liked in order to increase the liberties of the subject. 642 They never did so while in office, but they satisfied themselves by a faint reference in their election Manifesto and said that next time they were in they were certainly going to do it. I can only say that I still would have some doubts about the nature and extent to which that promise will be fulfilled. I think that the problem that arises in this connection is that people out of government regard this as obviously something that needs to be done. However, when they come into Government they come into line with the realities of the situation—that it can be done only in circumstances of exceptional difficulty and by a very bold advance.
As regards the present Bill, what is most distressing is the unanimous hostility of the Press to it. The noble and learned Lord, Lord Elwyn-Jones, referred to this matter, and so did the noble Lord, Lord Wigoder. I would venture to make a suggestion. I believe that it is of desperate importance that in a free democracy a proper relationship should exist between Press and Government. As the noble and learned Lord, Lord Elwyn-Jones, rightly said, it should not be a relationship of excessive affection: it should be a relationship at arm's length, but it must be a relationship where the Press has confidence in the honesty of the Government and confidence in the certainty that the Government will not use this legislation for ulterior or disreputable motives. It needs to be satisfied that they will not use it to conceal errors. It needs to be satisfied that they will not use it to prevent embarrassment.
I venture to suggest that if that has not already happened, it would be very appropriate for the Government to confer with the senior organs of the Press about how the Bill might be amended in a way that would restore its confidence. There is a splendid institution for doing that. I am referring to the Press Council. At present, the chairman of the Press Council is an extremely distinguished lawyer, as indeed were his two predecessors extremely distinguished lawyers. He is perhaps in some ways the most suitable person. So far as I know he has had no political affiliations. He is chairman of the Bar Council, and in my view his view on this matter—if consultation has not already taken place—would be of very great value.
643 Another matter that would greatly restore confidence, and which has already been raised, is the question of who should institute proceedings and in what circumstances. There is bound to be great hostility to the suggestion that a Minister of the Crown can, as an unchallengeable act, certify that an offence has been committed. I know that the noble Lord said that it could be left neither to the courts, nor to the institution of prosecution, because it might mean providing information in excess of what was safe at that stage. I must remind him that if a prosecution is in fact instituted all that information has to be provided. It is provided at the hearing, and the courts have found methods of hearing in camera those parts that are regarded as confidential and as possibly dangerous to the security of the State. They have found ways of hearing those matters without the necessity of bestowing the power on a Minister. Your Lordships will never persuade the Press that an unfettered discretion vested in a Minister is a safe thing to give in respect of almost anything—certainly not in a matter which affects the liberty of the subject. I ask the Government to reconsider the matter very carefully.
It is slightly ironic that the self same Lord Chancellor who has expressed such cogent and persuasive reasons why we should have a Bill of Rights which assigns every matter of significance to the courts should regard it as inappropriate that this particular matter should be assigned to the courts. That is also a reason why we should think again about bestowing unfettered discretion on a Minister without any right of appeal. If I may say so, I think that rather than vesting this power with the Director of Public Prosecutions, who has already had some very invidious decisions to make, and putting the Attorney-General in the same situation, it would be far better to adopt the rule that applies, if I am not mistaken, in relation to criminal livelihood—that no prosecution can be instituted without the consent of the court. If that can apply in a matter as important as that I cannot see why it should not apply in these cases. I invite the Government to reflect on whether that change might not do a great deal to render the Bill less unacceptable to the Press at large and, if I may say so, to the public at large.
644 I should like to hark back to the question of the Freedom of Information Bill. Much has been said about this and it is prated about as though it were a solution to problems. The lawyers present, and some who are not lawyers, may, a hundred years ago, as I did, have read Dicey's Constitutional Law and remember that he told us that liberties in this country were not prescribed by Act of Parliament. What one was entitled to do was what one was not prevented from doing. I take exactly the same view about information. I would rather see the area of prevention restricted than an attempt to enunciate what it is we are entitled to do. I do not believe that it is possible to do that. The result would be total confusion. I think too that Mr. Freud was much more consistent and logical in embodying in one Bill—if he had wanted to have a Freedom of Information Bill—provisions both for the freedom of information and for their restriction. My own view is that we shall have much greater safeguards and benefits by limiting the restrictions than by intending to state what it is we are allowed to do. These are general observations, and I conclude only by saying—
§ Lord HARMAR-NICHOLLS
apologise for interrupting the noble Lord, but I wonder whether he would assist me on a very important point? He suggested that there could be some legitimate doubt as regards the impartiality of a Minister and whether he would initiate proceedings. He seemed to suggest that the chairman of the Press Council, who is impartial and objective, could perhaps be consulted because he is impartial and objective. However, he cannot speak with the authority of the rest of the Press, whereas a Minister, when he makes a statement, involves the whole of the Government. Therefore, if one questions the impartiality of a Minister, one is questioning the impartiality of the whole of the Government. However, the recognition that the chairman of the Press Council cannot, with authority and certainty, speak for the whole of the Press in his reaction, is, I believe, a possible weakness in the type of suggestion that the noble Lord is putting to the Government in asking them to give thought to amending the Bill.
§ Lord GOODMAN
My Lords, as I grow older it becomes increasingly depressing to see how difficult it is for me to 645 make myself clear. I did not at any time suggest that the institution of proceedings should be at the discretion of the chairman of the Press Council. I suggested that it might be desirable to consult the Press Council and other relatively impartial authorities in relation to the Press, as to the terms of the Bill. Clearly it would be quite inappropriate to seek to vest the Press, who are most likely to be the people accused, with the authority of launching the proceedings. That was never my intention and I apologise to the noble Lord if I gave him a misleading impression.
In conclusion, I do not believe that freedom of information Bills are likely to achieve much in the way of making us freer people. The number of restrictions on the expression of opinion and the expression of view are, indeed, likely to affect whether we are free or not free people. I would hope that the Bill will be most strenuously considered in Committee. I hope, too, that we shall achieve a situation with an Official Secrets Act, where the prevention of the dissemination of information cannot in any circumstances be operated as a censorship. I hope that we shall attain a situation where the Government will demonstrate—as I am sure is their intention—in the written word (and the written word will speak for that demonstration), that it is their intention only to restrict these matters to the extent that they are a danger to society and a danger to Government and likely to impede good government.
§ 4.59 p.m.
§ Lord DERWENT
My Lords, some of your Lordships may be somewhat surprised to find me making a speech because they may know that many moons ago I decided never to make another speech— I merely interrupt if I think I can be tiresome. It was not out of consideration for your Lordships that I gave up making speeches, but on the various occasions when I sat on the Front Bench I became extremely tired of the sound of my own voice! However, this is a Home Office Bill and, although I never dealt with the matter as such when at the Home Office, it is a matter that has always interested me and I realise the complications.
May I say without any impertinence that for the first time I think that I agree 646 with every word that has been said by the noble Lord, Lord Goodman. There have been occasions when I have disagreed with him and I have not said so. But today I undoubtedly agree with him.
Merely from looking at the history of the matter it must be quite clear that noble Lords opposite will not divide on Second Reading against the Bill.
Looking at the history of the matter, it started, of course, with the Franks Committee, and, it was found in the end that some of that Committee's recommendations did not work. After a long time and two manifestoes, the previous Labour Government issued a White Paper which differed to some extent from the recommendations of the Franks Committee. This Bill very much follows that White Paper, though there are certain additions to it. Obviously noble Lords opposite are not in a position to divide on Second Reading, but the noble and learned Lord, Lord Elwyn-Jones, indicated at some length that he intends to oppose quite a few of the details in the Bill during the Committee stage. He indicated that he would not oppose the Bill now.
There have been three additions to the White Paper which are of some importance and which I do not think have been mentioned. I may be wrong in saying that they are additions, but I think I am right. The first, to use shorthand, is the protection of foreign Governments. I believe that to be important; it is a question of our credibility as a country. There is power in the Bill to stop information which is given to us in confidence by a foreign Government from being spread about. The clause that deals with postal interception is also new and important. The third addition arises in Clause 1(4)(b), which brings the nationalised industries into the picture and advocates treating them the same as any other business or body corporate. That is all I want to say about the Bill.
I should like briefly to make some comments on the Press. Seldom have I had any opportunity to give advice to the Press, though they have given me lots of advice. I believe that they are ruining their own case. I have read various Press comments on the Bill. They may be right about some of the things they dislike about the Bill, which may be 647 altered in Committee, but in some of their articles they have given the impression that they object, first, to the fact that in the Bill they are treated exactly the same as any other ordinary citizen, though differently from the civil servant. I do not see why they should not be. I do not think that that is what they mean, but that is the impression given to other members of the public. In that way I believe that the Press are spoiling their case.
Secondly, in some articles they seem to suggest— I do not think they mean to—that the Government are not the proper people to decide what is secret and what should not be divulged. One article in one of the papers goes further and, reading between the lines, the suggestion is that the Press should decide. I am sure that that is not what is meant. By overstating their case in that way they are doing themselves a great deal of harm.
I should like to follow up what the noble Lord, Lord Goodman, has just said. I do not believe that the suggestion in the Labour Party's Green Paper about divulging information—I shall not say ad lib—and putting it into legislation would work. It was tried in the United States and as soon as the laws were passed they had to start hedging around and stopping what they had already agreed to. I am convinced that the proper way to deal with this question of information is to put pressure on the Government, but that should be done by administrative means. If Governments wish to give out more information, they ought to make quite certain that their civil servants give out more information and that they can do so, but to do it by means of the law would be a failure. That is my swan song.
§ 5.5 p.m.
§ Lord HUTCHINSON of LULLING-TON
My Lords, I must confess that, eight and a half years since the Sunday Telegraph case, seven years since the Franks Report was published, 10 years since the Fulton Report was published, 16 years since the publication of the Radcliffe Report and only a mere year since the ABC trial, to be presented with a Protection of Official Information Bill rather than a freedom of information Bill is something of a disappointment. I 648 confess that I find the Bill itself depressing. Some of it is so unsatisfactory that I wonder whether it can be cured by amendment. The icing on this indigestible and, in some parts, poisonous cake is, of course, the final burial of Section 2. But that is a mere formality, as it expired years ago.
However, there are some good points in the Bill and, of course, I welcome them. Above all, I welcome that it is the disclosure, and not the receipt, of information which is made subject to the criminal law. I welcome the defence which is provided under Clause 2(2)(a) and (b), the classification of documents to be governed by regulations and the attempt to limit the ambit of the information which is to be protected. Those points are good and are perhaps worth supporting in the spirit of the opening remarks of the noble and learned Lord the Lord Chancellor.
I turn now to the bad aspects of the Bill. Those most directly affected by the Bill are, first, of course, the huge number of Crown servants; secondly, the Press and the media and, if one believes in the freedom of the Press, onwards to the informed public; thirdly, the lawyers—for it is the advocate who will advise on whether or not to prosecute and it is he who must explain the offence to the jury which is to try the case and, indeed, argue the law; it is the advocate who must ultimately be the champion of the freedom of the individual when the matter comes to trial. It so happens that, as an advocate, I have been involved in a large number of Official Secrets Act cases, the two most relevant—and this has been mentioned by my noble friend Lord Wigoder—being the Sunday Telegraph case and, more recently, the ABC case. Many days were spent in those trials discussing and seeking to disentangle the idiocies, of Section 2. In my opinion this Bill has not resolved the problems which have exacerbated the relations between the Press and Government and which have brought so many trials under the Official Secrets Act into disrepute. Indeed, as my noble friend Lord Wigoder has already said, by replacing a discredited and therefore unused section by a new and in many ways more rigid control, the Bill may turn out to be a backward step.
In my opinion, this Bill is once again befogged by the official obsession with 649 secrecy and suspends once more—and I regret taking this view—above the journalist's head a sword which may fall unpredictably and oppressively and propel him once again into the dock. Franks came to two clear conclusions, did it not? One was only to use the criminal law when there is a specific reason. The reason there is to protect the security of the nation and the safety of the people, as it was put. Secondly—and this was essential to the Franks Report—the only way to bring certainty and clarity is to have a clear system of classification governed by regulation with a built-in safeguard against over-classification, because one of the greatest dangers in this area is to launch a prosecution against an individual on an outdated classification.
But the very basis of the Franks Report was that in a trial the prosecution must satisfy the court that the information falls within the necessary classification, and that that information was at the time so classified. Classification was the test of the serious injury to the interests of the nation. The safeguard against over- classification was a review of the classification by the Minister; a review of the classification by the Minister before proceedings were instituted. Of course, here in this Bill, as we have heard, the certificate of the Minister is not a review of a previous classification in order to see that it is up to date and a prosecution is properly launched. It is apparently a review in the sense of looking at the information which has been disclosed and then certifying that in fact it enters the category suggested, which is a very different thing.
What do we find here in this Bill? I wish not to go too much into detail, but I would submit that it is important for the House to appreciate what are the implications. Clause 1(1)(a) and Clause 2 have been referred to. What would happen, under this Bill, in court under a prosecution? The Crown servant would be found guilty of an offence if he disclosed anyinformation relating to defence or international relationswhich has been certified by the Minister as likely to cause serious injury to the interests of the nation. In other words, as my noble and learned friend Lord Elwyn-Jones pointed out, the main issue in the trial will have been decided before 650 anybody comes into court at all; that is, the certificate of the Minister is all that would be required. If prosecuting, one's job would be exceedingly simple. It would be to prove that the person in the dock was indeed a Crown servant and, secondly, that the information was disclosed. That would be the end of that, and there would be no defence for the defendant in relation to that certificate. But the certificate, as I have already pointed out, is given ex post facto, and there is no requirement as to prior classification.
What course would be open to the defence? This is the other point in this Bill which I submit needs the most careful examination. On a balance of probabilities, that he had no reasonable cause to believe that the information, was information to which this Act applied. Well, what is that information? It is that described in Clause 1(1)(a):Information relating to defence or international relations the…disclosure of which would be likely to cause serious injury …".So on this defence which is given to the defendant, the defendant would want to prove that he had no reasonable cause to believe that the information would be likely to cause serious injury because, for instance, it had been published in many other places already.
But then the certificate is produced, and the certificate is conclusive that that is not the case. What is the result of that? Is the defence which is provided here rendered inoperable by the production of the certificate, or does the Minister visualise that a jury is to be told, "You must find this disclosure of information is likely to cause serious injury because you have got the certificate in front of you, and that cannot be disputed in this court. But, if the defendant proves the information to have been published widely before he disclosed it, then you can acquit him because he genuinely believed the prior publication would mean that any further publication could not cause serious injury to the nation, although the Minister certified that it does"?
A defence of reasonable cause to believe no injury must involve an inquiry into whether in fact there was injury, must it not? For if you can prove that there was not any injury, then of course your belief must be a reasonable one. I hope 651 that this is not a lawyer's complexity of thought, but it does seem to me that if you have here a certificate which cannot be in any way rebutted, and at the same time you provide a defence to a defendant to prove that he had no reasonable cause to think that this publication would cause injury to the nation, then the very foundation of that defendant's defence must be that, because it was known beforehand it could not cause any injury to anybody, and therefore he must be in a position to prove that. Yet the situation will be completely farcical if, at the same time, the jury going out to consider that matter had in their hands a copy of a certificate from a Minister which said that that cannot be so.
Can your Lordships accept the power in the Minister to certify? In nine cases out of 10 would you not agree that he will do what his security advisers advise? Perhaps I may tell your Lordships what happens in those circumstances. I hope that the noble Lord, Lord Derwent, will not be upset by what I am going to say. In the ABC case the matter concerned the disclosing of information about Signals intelligence, and the Signals intelligence professionally is known as "SigInt". In court were several rows of security officers, and on the first day of the trial we were told, "The word 'SigInt' is secret."We were told that the whereabouts of SigInt stations in this country were secret and their names must not be mentioned; that the SigInt units serving there were secret and their names must not be mentioned; that the United States had SigInt stations in this country, but they were secret and must not be mentioned; that the headquarters of SigInt was in a place which must not be mentioned because it was secret; that the aerials used in those stations were secret; and that the physical layout of SigInt stations was secret and must not be mentioned.
On the first day of the trial and in cross-examining witnesses one was told that one must not mention SigInt but only intelligence. Having a client who had, as a journalist, collected a large library of information on his own particular subject, we were able within three days to produce 20 or 30 articles from around the world discussing SigInt; we were able to produce photographs of 652 boards up outside SigInt stations with the names of the units written on them, and the court was in a state of hilarious laughter when witnesses appeared in the witness box and I asked, "Is it right that this"—passing up on a piece of paper—"is the name of your unit?" and the reply was, "I cannot answer that question; that is a secret." I then passed a photograph of the board to the witness and asked, "Is that the board that is up outside the door of your unit?" The answer was, "Yes", but when I asked, "Read it out to the jury", the answer was, "I cannot do that; that is a secret". There is no question at all but that these matters, if there had been provision for a certificate, would have been certified by the Minister on the advice of his officers as being secret matters which, if mentioned at the Central Criminal Court, would bring the whole of the stucture of society to the ground. That is the situation, and I ask noble Lords to consider very carefully whether this system of certification is one they are prepared to accept.
I turn to the international relations part of Clause 1. It refers to:serious injury to the interests of the nation".I remind the House of the Sunday Telegraph case, in which publication involved a confidential assessment of the defence situation in Nigeria, the supply of arms to the Nigerian Government and the attitude of the British Government to Biafra showing, as it appeared, a very different situation from that stated officially by the Government in Parliament. There was a serious deterioration in our relations with Nigeria when this matter was published. There is no doubt about that at all. What would have been the Minister's certification in that situation? What would the Minister's certification have been at the time of Suez? These are matters of serious import.
Again, how in terms of international relations would the defendant raise the defence that is given to him—that he had no reasonable cause to believe the disclosure would cause serious injury? Would the Minister agree to him calling a series of experts to say that the interests of the nation required the disclosure? If not, the defence is a myth. My personal view, for what it is worth, is that the phrase "interests of the nation" is an impossible definition, that the words are 653 far too broad and could be argued forever. The words should in my view be much more akin to "the defence or security of the Realm" and that nothing less will do. The test must be one of evidence of classification, I suggest, and a certificate should be given only on a review of the classification by the Minister at the moment of proceedings, and that the defence of previous publication surely should be provided throughout the Bill, of no reasonable cause to believe that the information was protected because it had become available to the public or a section of the public. Surely Clause 7 must be rephrased, extended and strengthened from the miserable creature it now is.
Under Clause 1(1)(b), as the noble Lord, Lord Wigoder, pointed out, the disclosure of any information relating to security or intelligence would become an offence, and we are back again to the old cups of tea situation of Section 2 of the old Act, and once again the defence provided—of no reasonable cause to believe that it was information to which the Act applied—is vacuous, is it not? because all the defence would mean was that it did not relate to security or intelligence. That is no defence that would be of any use to anybody and, in all these cases, the matter would clearly relate to security or intelligence and the defence that is needed is the defence to which I have referred.
On Clause 4 and the offence of wrongful disclosure by the ordinary person or journalist, if a person discloses any protected information—anything which he might reasonably believe related to security or intelligence which had once been in the possession of a civil servant or a clerk in a military establishment—it would be an offence. The fact, as the Guardian newspaper disclosed that immigration officers helped MI5 with information would immediately fall within that category, and so would all the matters I referred to in the ABC case. I submit that the whole question of the propriety, safety and expense of the intelligence services is one surely which must be debated in Parliament.
Clause 5 has not really been referred to, but I submit that it is the worst of all if we are looking at the objectionable parts of the Bill. Here indeed the journalist should be alarmed, for this is indeed Big Brother himself. It provides that if: 654any person has in his possession … any document containing information … which is protected"—and again let us not forget the certificates—and has reasonable cause to believe that it is so protected and,fails to comply with an official direction for its … disposal",he commits an offence for which he may receive three months imprisonment or a £1,000 fine. Your Lordships will appreciate that that refers to any document relating to anything to do with security or intelligence—that is in regard to the intelligence services.
I should like to summarise the situation as I see it on reading the clause. I may be wrong, but consider the position of a journalist who in a sensible way amasses a file of information —much of it of course confidential, some of it leaked to him no doubt by politicians, police officers and others, much of it from very different sources—which he keeps himself and discloses or uses only after consultation with his editor, no doubt. Such a journalist will find the police or the security services, with a search warrant, coming and rummaging through his files, hitting upon documents which fall within the words that I have quoted, containing information which is protected and certified to be so of course when the search has been completed. He will then be ordered to dispose of the documents in the way that the official requires him to dispose of them, and if he does not do so, he commits an offence. Is that what your Lordships feel should be an appropriate course of action in the light of the provisions of the Bill?
My Lords, I have said enough, and I have taken a long time, in order to give some indication of my own personal grave doubts as to the desirability of the Bill in its present form. I should like to second the suggestion of the noble Lord, Lord Goodman, that the chairman of the Press Council might well be consulted in relation to any possible amendments to the Bill.
§ 5.32 p.m.
§ Lord GIBSON
My Lords, I shall be brief because I think your Lordships will agree that enough has been said already this afternoon to convince all of us that the Bill will need a great deal of work in Committee if it is to achieve what surely 655 we all want to achieve; namely, the proper balance between freedom and security—a point that has been made by a number of your Lordships this afternoon. This is the essence of the matter, and the question is whether the Bill achieves it, and I believe that it does not do so in its present form. Indeed, I do not believe that it represents a net improvement over the old Section 2 in its present form. I believe that it is preferable to live under an unworkable blunderbuss or a sawn-off shotgun which is very seldom invoked than under this Bill, which I believe would have a very repressive effect.
Of course the Bill contains some improvements. It narrows the area of secrecy, but within the newly defined area, which necessarily is very wide, it effectively allows the Government to determine what is a secret and what is not; and I do not believe that by their nature Governments are the best instruments for deciding where the balance between freedom and security lies, particularly at moments when they are liable to be embarrassed. Let us therefore examine the Bill in Committee to see whether it protects official information and also whether it achieves the necessary balance. I believe that it gives the Government too much power, and I hope that we can do something about that. Like the noble Lord, Lord Hutchinson of Lullington, I should like to support the suggestion of the noble Lord, Lord Goodman, that the Press Council chairman might help.
I accept that in order to give the authorities the power to catch all those who really are endangering our national security or interest the definitions of protected information have to be wide, and they certainly are wide in the Bill. Clause 1(1)(e), for instance, refers toinformation which is obtained from a government of another State … on terms requiring it to be held in confidence".It is not difficult to imagine circumstances in which there would be room for two perfectly legitimate opinions as to whether the national interest really required that such information should be protected. Yet, if any person discloses information of that nature he may be committing an offence under the Bill, which goes on to say that a prosecution under this clause 656 requires the consent of the Attorney-General. A prosecution under the clause relating to defence or international affairs requires a certificate from a Minister of the Crown to the effect that disclosure damages the national interest. This point has been constantly referred to this afternoon.
Surely the whole point is that if the definitions are to be drawn widely enough to be effective when they are needed, it must be wrong to allow Ministers—the Executive authority—the sole power to interpret where the national interest lies. I urge that we examine the Bill in Committee and draw the definitions widely enough for their purpose, but withhold from the Government the power to prosecute until they have satisfied an independent authority. We have been told by the noble and learned Lord the Lord Chancellor to make the distinction between a political decision, which is why it has been decided to give this power to a Minister, and a judicial decision, which is felt to be inappropriate in cases of this kind. I take that point completely, but at the same time it seems to me vital that we find a way of assigning the power to make the decision to an independent authority, and I must say that I can think of no better independent authority than a High Court judge, hearing the appeal in camera if necessary.
The Government could have allowed it to be a defence in a prosecution to be able to say that the disclosure was in the public interest and was not likely to harm that interest. They have not done so. They have preferred to let prosecutions go forward simply on the say-so of Ministers without any such defence being allowed, and I feel sure that this cannot be right. I hope that the House will insist that prosecutions for the disclosure of protected information shall go forward only on a certificate from an independent authority. That would do something to reconcile the conflicting requirements of security, on the one hand, and of freedom of information, on the other.
Because I think that the Bill, if enacted as it stands, would make legitimate, indeed vital, journalistic inquiry harder in practice—not in theory, but in practice—than it is today, I ought to declare an interest. I am chairman of a group of companies, which includes two newspaper publishing 657 companies one of which publishes the Financial Times. Incidentally, I would refer your Lordships to a leader on this subject which the paper published this morning. I felt that it was extremely well balanced, and the newspaper perhaps could not be charged—as one noble Lord was—with ruining its case. It was a very measured comment on the Bill, but none the less an indictment of it. In declaring my interest let me say that I seek no privilege for journalists. I seek only the right of all citizens to freedom of information, whether or not under a freedom of information Bill, limited only by what is vital to security, and I submit that an independent judiciary would be better judges of the national interest in this respect than would Ministers of the Crown.
§ 5.39 p.m.
§ Baroness HORNSBY-SMITH
My Lords, it is with considerable trepidation that I follow the bevy of legal minds who have spoken this afternoon, but perhaps it is not a bad thing for an inquisitive layman to transgress into what looks as if it is going to be a lawyers' paradise. First, may I thank the noble and learned Lord the Lord Chancellor for his most comprehensive explanation of the provisions of the Bill and say that overall I certainly support it. I am as committed to liberty and democratic rights as, indeed, any Member of this Parliament must be; but, equally, I am firmly security-minded where the interests of this nation are concerned: not just in defence, to which the last two speakers would almost entirely have limited it, but in international relations and also in regard to something vitally important to Government interests and contracts in inventions, industrial processes and brilliant research, the disclosure of which could do irreparable damage to the future economic progress of this country.
Having worked with four Ministries, one in war-time and three in peace-time, I know how dribs and drabs of information can be built up into a dramatically important whole, and how what may be insignificant to a junior can provide the missing link to an expert. Ironically, of course, alongside the intelligence services no one is better at putting bits and pieces together and making a whole cake out of them than are the Press. They can be 658 quite expert at it. The suggested demise of the tight net of Section 2 of the Official Secrets Act has been generally welcomed, and indeed I welcome it also. In fact, the Bill implements, though it has been given little credit for it today, many of the recommendations of the Franks Committee, which, with the White Paper published by the last Government, still emphasised, both of them, the essential importance of national security and international relations.
The Bill also refers to Government contractors. Thousands of these are in private enterprise industry, and are susceptible in this day and age to the tremendous post-war growth in industrial espionage. In this Bill we seem to have fully protected the nationalised industries, firms under Royal Charter, British Leyland and the BBC—ironically, not ITV—hut it is less effective in the case of companies vital to this country, not merely in defence but in new inventions that could win us enormous exports abroad if we are first in the field, and in their development and research before they receive their Government contract. How, too, in this computer age, does the individual fare in safeguarding, under this Bill, his justifiable privacy? The Government have obviously sought to find a fair and rational balance between the zeal of certain sections of the public and the Press to "publish and be damned" and the legitimate protection of our national interests and individual rights; and I must say that I gain no heart from the last two speakers, particularly the noble Lord, Lord Hutchinson of Lullington, when he seeks to separate national security from international affairs. One of the Press staff may go to jail for six months, but the damage done if confidential exchanges between two heads of State are disclosed could be far more damaging to this country, and could completely destroy the goodwill and the faith that may have taken years to build up.
The Bill—and if I am wrong in this I am sure my noble friend who is to reply will correct me—seems to shift the weight of the offence from the recipient of information leaked to the party leaking such information. What happens when the Press refuse to disclose their sources of information? Are we to have endless Government inquiries, at the taxpayers' expense, to find the culprit? There has 659 been some criticism of the clauses covering defence and international affairs, but I would firmly agree that such issues are essentially political and that only the Government of the day, with all the information at their command, have the confidential know ledge and, above all, the overriding responsibility to the country to assess the extent of the injury inflicted on our nation and on our overseas relations; or, indeed, defencewise, on our military allies.
Let us not forget that in this battle for information between nations we do not compete on equal terms. Less than a quarter of the world has a free Press to probe and pry and analyse. In three-quarters of the world, radio and television are equally controlled and restricted by rigid censorship, as is open debate. In many lands, to criticise any action of the Government is treasonable, as is critical analysis of any Government project. The availability of information from such countries is minimal, and, being Government-controlled, can even be deliberately misleading "black" information in comparison with the wide availability of information in another country in a free Press, radio, television, in research articles and in industrial journals. The information which can be gleaned from open sources in such countries far exceeds that which we can obtain from the censored countries.
It has been suggested that quite a number of people seek to transfer the decision on "injury to the nation" to the courts. How, without disclosing the value of the most secret defence processes or the most delicate international negotiations, could you impose upon a judge and jury, with all the court officials—the police, the lawyers, the witnesses, the Press—the responsibility of assessing that which it is rightly the absolute duty and responsibility of the Government to assess, that duty and responsibility having been put on their shoulders by the elected Parliament? And what effect would this greatly widened disclosure have on relations with our NATO allies or our foreign neighbours and allies? Without security, such international exchanges of information would simply dry up.
I should now like to say a word about Government contractors. From being 660 the greatest industrial nation in the 19th century we are now overtaken by the financial and economic strength of several of our industrial rivals. We are still, however, an inventive nation, and the need to protect such specialised knowledge during its development and until it is patented or is sufficiently commercially viable to be negotiated and bring a Government contract is, I think, of vital importance—because industrial espionage is now big business. Some of our rivals give the most cursory scientific data of their equipment, but when they inquire about ours, frequently with no intention of buying but merely to pick our brains, they submit questionnaires demanding the greatest possible scientific detail. It would appear that in so far as such equipment is under Government contract, and only when it is under Government contract, will it be protected; but research and development of a prototype may take years before the Government contract to buy comes in. So whether it be in this Bill or in another—and possibly it has to be in another—I think our national inventiveness should be supported and protected.
Finally, may I raise a few queries which could perhaps be considered before we reach the Committee stage? The Bill restricts disclosure but does not restrict misuse by the person restricted. What I mean is this: A Government contractor cannot disclose technology given to him to fulfil a Government contract, nor can he disclose an article he makes with it; but he can use that information for his own purposes, be they never so nefarious, possibly for the purpose of industrial espionage, possibly for the purpose of making similar goods with that information for sale to unfriendly powers. Secondly, it defines official authorisation as authorisation duly given by a Crown servant or by a Government contractor, but it does not make it an offence, as I am given to believe, for the Crown servant or the Government contractor to give an official authorisation unduly, when he has no right to do so.
Strangely, the Bill causes an act done by a foreigner outside the United Kingdom to be an offence even if it is an act done in their own country by a foreign corporation which may have a contract to supply even minor goods to a United Kingdom embassy abroad. It also appears that the 661 Bill does not protect a person who discloses information under an order of court, including the European Court of Justice, or an order of the EEC Commission. My Lords, I do not expect the noble Lord who is to reply to answer these queries tonight, but I think that they may be points which can be considered before we reach Committee stage. I have spoken for longer than I expected, but overall I think—even without perhaps all the Amendments sought this afternoon—we have what will eventually become a good and necessary Bill.
§ 5.51 p.m.
§ Lord HALE
My Lords, I apologise first to the noble Baroness because I have been having electro-magnetic trouble with my hearing aid and have only just got it right in time to hear what was certainly, I hope, the theme on which I shall be reading her words with very great interest tomorrow morning. I have held for a long time that the most potent force in the world today is accident, and it is a subject which seems quite beyond the power of man to control. I went by chance into the Whips' Office on Thursday afternoon to put down my name to speak on the following Thursday. Recollecting what has recently happened in relation to Order Papers, I inquired about this Bill.
My Lords, I regard this Government with extreme suspicion. Some events which have happened, even with the noble Lord, Lord Belstead, and his colleagues, I found very disquieting. I asked whether there were many hoping to speak on the Franks Report and the Bill. The lady replied, "Only one." I became almost terrified at the thought that this Bill—which had appeared quite suddenly on the Order Paper, had been put down for a day when we were not due to sit, and when we were summoned for that day at only two days' notice—somehow or other was going to have very poor support or give rise to a very poor debate. Regardless of the fact that my presence could easily make it worse, I put down my name to speak provisionally and waited for Monday morning.
The motivating force in my case undoubtedly was the gentleman called Dreyfus; for there I saw world history changed in a single case. There were others, undoubtedly; but I doubt whether 662 many now can recall that, unless one's physical history is shaped just as much by that chance. I was born in that era when we saw France destroy herself again on this semi-religious, semi-racial, and semi-Left/Right struggle which witnessed the long agony of an undoubtedly, unquestionably, innocent man. He had no connection with the matter whatsoever. He was a Jew—which suited the Right Wing in France at the time. We started something then which led on to the gas chamber. It seems that there came from that a genuine distaste, a genuine bitterness, a genuine horror of the whole procedure of the enforcement of secrecy by interrogation, by the use of spies, by the trapping of people.
There was one thing that was said which came rather outside the range of the debate, and which was welcome to my way of thinking, from the noble Lord opposite. He said that he had been talking to two very distinguished officers of State about these matters. I was a little shocked at the sort of official attitude which came from very distinguished men—men I would classify as more than civil servants —in their attitude to the concerns of a very large proportion of human society. Anyone who wants a classic example should consult the diary of Harold Nicolson, a gifted, charming, delightful writer but one who had no idea of any kind about the lives of his constituents in Leicester where he was elected largely by change and where he held his seat, as a very knowledgeable man about foreign affairs, for years. But he never made any mental contact at all with the petit bourgeoisie,or the working-class.
This was the attitude that recalled one of the events in the long toil of this Act. The Labour Party had rather a rough time at that time. They were, strangely enough, worried about the leadership and quarrelled about who should lead them. Mr. Raymond Postgate is writing the Life of George Lansbury. As I say, in the Labour Party Snowden had less chance of contact even than Frank Hodges would have after he had left the Party; and he had a genuine working-class background. The Labour Party at that time went through a period of constant reviling, as did most of its supporters. We had an Attorney General of great talent, who would rather have 663 volunteered to serve with any party, who brought a prosecution of a communist and then withdrew it. He took every wrong step that is possible to take without any corruption or evil motive. There was a complete lack of understanding of the principles and duties upon which a prosecution should be founded. He withdrew it for reasons which were very convenient for the Labour Party but of no particular merit, and they were certainly in contrast to the spirit of the Act.
I wish to refer particularly today to one case, those of us who know the Labour Party, and the background of the illustrious career of my noble and learned friend Lord Gardiner, know who would get "pinched" for a prosecution. There was of course the Zinoviev letter—I think about the 15th refutation of the validity of the Zinoviev letter—which was undoubtedly concocted by Right Wing elements in this country. Then there was George Lansbury. Raymond Postgate, his son-in-law, in writing his biography wrote under some difficulty because they had had a demand for George's Cabinet papers to be returned. He was in the Cabinet for a few months as First Commissioner of Works. He was a man of admirable probity, of a strict integrity. But capable of course of indiscretion. He went over to try to settle Hitler. I think that was rather a sensible thing to do; I can see no possible harm in that. He tried to make peace with many people —not, so far as I know, with Ramsay Macdonald. From two of the names mentioned by Raymond Postgate, he received constant demands for the return of his Cabinet papers. Raymond Post-gate was finally told that he would be prosecuted under this Act unless he returned the papers forthwith. The war was on and George Lansbury was dead. When Raymond Postgate asked for the return of the papers, which he had surrendered—including many he need not have surrendered, but he said "Take the lot, I cannot start working over the man's papers at this moment with the war on; I am in the Home Guard"—Mr. Attlee said: "No, they are Crown property". We now know they were not Crown property. In a way we are passing an Act to define ownership a little more clearly.
As I say, I put my name down to speak with no very sure intent, but this is 664 a matter which so touches the heart and conception of justice and brings all of us into touch with the problems we were taught to face and principles in which we were taught to believe. I thought that the Franks Committee Report was a very cheery one, on the whole, from a distinguished committee which sometimes erred on the side of caution. Sometimes they seemed to have been almost reckless.
I cannot say that there is anything in detail that I wish to say on this Second Reading. I hope to be able to attend throughout the Committee stage. I cannot argue because one cannot comprehend the magnitude of today's problems. I do not know how many of us today know what are the methods of finding and checking. I do not know how far we have progressed—if it be progress—in the interpretation of documents, the magnification of documents, the circulation of documents, and in the transmission of papers. I know that we have at the world's disposal, and being controlled by many more people, the hydrogen bomb which is of a destructive potential which brings us nearer to the end of all things. I think that we have got to take risks one way or the other, and we do take a risk if we do not have official secrets Acts and secrets retrictions.
The time has come when we ought to take one or two decisions. We have to make peace; we have to take the chance. An immense task is to organise world understanding and world co-operation, which means of course not thinking that democracy is necessarily precisely the way in which the Russians should regulate their affairs. They have done pretty well but they have deprived the world of a lot of freedom; but their enemies have deprived the world of a lot of human beings, too. The world is facing problems of a tremendous magnitude.
I know I have abused my position; I came here hardly prepared to go into details. I have listened to almost every word, including the brilliant speech of the noble Lord, Lord Hutchinson of Lullington, which was a pleasure to hear. In a strange way, I doubt whether there has been any dissent, any acrimony, about objectives. I hope that in that spirit we may be able to improve this Bill while thinking of the wider aspects in which time is beginning to pass irrevocably and finally to the end.
§ 6.8 p.m.
§ Lord GARDINER
My Lords, it is always a pleasure to follow my noble friend Lord Hale. I shall be short. We are in an unusual situation this evening because usually of course we are concerned with differences of view between the major political parties. This is a subject in which the division of opinion has usually been between the Executive on one side and Parliament, the Press and others on the other. It is a difficult field because we must obviously nave an Official Secrets Act. The general difficulties have been felt. I cannot of course claim to speak with the experience of my noble friend Lord Hutchinson of Lullington. I can only remember one Section 2 case, perhaps illustrating the reason why for so long now it has been virtually a dead letter. This was a prosecution of a loyal, conservative, public school, conscientious civil servant who was in the Ministry of Information, a Ministry that existed not to conceal anything but all the time to give out information. She had been given, with other members of the staff, policy documents showing what British Government policy was in relation to various European countries and if anybody asked her what the Government policy was towards such and such a country she could then tell them. She could quote from the document, but she was not supposed to give anybody a copy of the document. She was particularly anxious to persuade a Yugoslav friend that our policy as to Yugoslavia was right and she actually gave him a copy of the document, which of course she should not have done. She was prosecuted under Section 2 and on the first count of the indictment she was not only dismissed the service but given the maximum punishment of two years in prison. I thought that was an absurd example of prosecution and an absurd sentence. The Court of Appeal upheld it; but it is not surprising, when one gets that sort of sentence and that sort of case, that the legislation is virtually a dead letter.
I agree that we must have an Official Secrets Act and in particular a Section 1. With regard to Section 2, what has impressed me most in the recent history of that section has been that, although for a good many years now it has virtually become a dead letter, I have not heard anybody say—and nobody has said in the 666 debate tonight—that anything awful has happened because we have got a dead letter. There are all sorts of prosecutions which ought to have taken place and have not taken place, so it seems to show that we should take some care before we do something in the legislative field which might make things worse.
My first difficulty concerns the completely unlimited powers of the Executive to decide the question of public interest. As the leading article in the Financial Times said this morning:What is secret will be anything which the Government chooses to call secretI cannot myself see why there should not be an appeal. It is quite true that in not providing for an appeal, the Bill follows the Franks Committee; but I myself believe that if the Franks Committee had sat eight years later in a very different climate they might well have taken a different view. The judges are not wholly inexperienced in this field. After all, ever since the Cammell Laird case some years ago now, it has been the law in this country that if only two people litigate the Crown is entitled to arrive and say, if a document is being called for, "You must not produce that document because it would be contrary to the public interest". The judge can then look at the document, if he is not satisfied, before making up his own mind: so they are not strangers to all this. But here there is no appeal to a court, to a tribunal, not even to a "three wise men" committee—nor, to refer to another suggestion which I think found some favour with the last Administration and which had been suggested by Justice, is it proposed that the Parliamentary Commissioner, the Ombudsman, might play a useful part in this field.
The second matter concerns the difficulties which my noble friend Lord Hutchinson and others have talked of over interpretation. The noble and learned Lord the Lord Chancellor said it was a merit of the Bill that there has been as great a precision as possible. However, if one takes a word like "security" or "intelligence", what do the words mean? At face value they might mean anything or nothing, and I should have thought that they required a fairly precise definition. There is a definition in the definition clause, but it is 667 an explanation rather than a definition and it says:' security or intelligence' means the work and activities of, and in support of, the security and intelligence services or any part of them, and references to information relating to security or intelligence includes references to information held or transmitted by those services or persons in support of them or any part of them".I do not know whether others feel much wiser after I have read that. Take security, for example: does it include atomic nuclear security'? In relation to Winscale, I think the fuels company in question would like to give some information on the grounds of security, and it ought I suppose to be a matter of security. We know that if a container of irradiated fuel—that is to say, containing plutonium, uranium and waste matter—is damaged, that part of London where it happened might, if it happened in London, be uninhabitable for the next 125 years.
I do not know how many of your Lordships yesterday saw a photograph in the paper obtained by three men. They had had no difficulty in finding out by telephoning a workmen's hut that a container of nuclear waste was due to arrive at Stratford Station at a particular time from nuclear reactors in Essex and Suffolk. So they went there with a rocket launcher and duly arrived on time. They then approached with the rocket launcher to within a few inches of the container. Fortunately it was not a real rocket launcher but a dummy. It looked exactly like it; but nobody stopped them and there is a photograph in the Observer of yesterday of the trigger being pressed. The railway company said: "well, it has nothing to do with us. They had platform tickets and we could not stop them coming on to the platform. If we had seen a gun or something we would have told the police. It is not a matter for us". Nobody would doubt that a public service may have been done by these three men taking this course and exposing the scandalous lack of security precautions; but does that come into this question of security or intelligence? No doubt the noble Lord, Lord Belstead, could tell us.
Also, I am very unhappy about the classification, which is to be done entirely by a civil servant, to be nominated, I think, by the Prime Minister. Classification will be particularly important to the Press. I 668 am glad to see the noble Lord, Lord Goodman, here because I hope he might agree with me if I proposed that before this Bill proceeds very far some Committee might be set up, on which the Press could be represented, to consider what the best method of classification would be. This, you see, would be following the Franks Report, because Franks said in paragraph 163:The Government and the representatives of the news media and of any other interest directly affected should enter into discussions with a view to the establishment of an informal committee on classification of the kind outlined in paragraphs 165 and 166".I think it might be a wise course to take if a committee were set up and the Press were consulted before the classification scheme is finally decided.
Lastly, may I just say this. It is clear, is it not?, from what so many of us have said tonight that, while it may be doubtful whether a poor Bill would be better than the present situation, if we are to get the right Bill, a great deal of discussion and consideration has to take place. I want to ask this question of the noble Lord, Lord Belstead, if I may. Is the rumour—I hope it is not an official secret—that the Government have decided that this Bill must be rushed through this House and be out of this House by Christmas correct? If it is, I should very much regret that, because, if ever there was a Bill which would repay a very full and careful Committee stage, I should have thought it was this Bill.
My Lords, I intervene very briefly, only because I want to qualify myself to speak in Committee. I believe fervently in the freedom of the Press, and this Bill must be scrutinised in minute detail in Committee before we allow it to go forward. I supported the noble Lord, Lord Goodman, when he implied, so I think, that it is the specific restrictions on freedom of speech which must be scrutinised. Having said that, I give my support to the Second Reading of the Bill.
§ 6.20 p.m.
§ Lord BOSTON of FAVERSHAM
My Lords, there has been a wide range of views expressed tonight on this matter—the Protection of Official Information Bill. I suppose the one thing on which there 669 may be unanimity of view is that tonight is perhaps the most appropriate night of the year to be talking about protection in the Palace of Westminster. It is, after all, Guy Fawkes night.
As might have been expected, this debate has revealed that there are great differences of opinion on this whole problem and pretty well every shade of opinion, if not every one, has been represented. My noble and learned friend Lord Elwyn-Jones, in his customarily thorough way, has spelled out in some detail the arguments as we see them on this Bench, so I do not feel that I need to detain your Lordships for long now. What is clear from this debate is that we all—or nearly all, at any rate—start from the same point, in that we share the view that there needs to be a move towards as much more open government as is possible. and that there needs to be protection for certain categories of official information and information held in official quarters; that is, including private information. Where people differ is as to how far those aims should go.
As has been mentioned by a number of noble Lords tonight, there is of course the question of balance—on the one hand, the need to preserve the security of the State and to safeguard its citizens and, on the other hand, to make available as much information as possible. Differences have emerged within the parties, not least in the discussions that took place on earlier occasions in another place. So perhaps the Government can take some comfort, at any rate, from the fact that whatever Bill is produced will not satisfy everyone; there will have to be a compromise of some kind.
My noble and learned friend Lord Elwyn-Jones has already indicated that the Bill before us contains elements that were in the White Paper of July, 1978, and, as he has also shown, that document itself contained some of the main proposals of the Franks Committee. Two of the principal matters proposed by the Franks Committee for inclusion as protected classes, which were not accepted as part of the White Paper plans, were Cabinet and Cabinet committee papers, except in so far as they were covered by other categories, such as defence and material about the currency and reserves; and, of course, as we have heard from the 670 noble and learned Lord the Lord Chancellor, these are not in the present Bill either. So it is true to say that, to that extent at any rate, this Bill is more liberal than some aspects of the Franks Committee's proposals.
A number of detailed objections have been raised to this Bill and there are some which may well be dealt with as Committee points, if your Lordships allow this Second Reading tonight. But it has already emerged—and I would underline what has been said—that there are a number of matters of importance on which the Bill is open to objection. One of the principal points—and this is something to which my noble and learned friend Lord Elwyn-Jones and others, including my noble and learned friend Lord Gardiner, have referred—on which there is cause for concern as expressed in some other quarters, too, is that the Bill separates protection of information concerning defence and international relations from the classification of documents and articles, contrary to the recommendations of the Franks Committee itself. Here I would refer to the last Government's White Paper, at paragraph 23 on page 13, where it states:The system of classification markings would be embedded in the Bill, as the Franks Committee recommended, by including the definitions of each security marking in the Bill and providing an enabling power for regulations about classification to be made".That more detailed provision is, of course, not in the Bill.
But the major point here, about which concern has been expressed on the Bill, is that classification, which Franks recommended should be the test of serious injury to the interests of the nation and a condition for prosecution, is in this Bill only an indication that information may be protected. The problem that some people have posed is that no one can be certain, as a result of these provisions in the Bill, that a document which is not classified does not contain information which a Minister may decide is protected by criminal sanctions; in other words, that a document can be declared ex post facto to be protected.
There is also some additional matter of concern in some quarters, which is put in this way: that the system of classification is not to be the responsibility of individual 671 Ministers, but of the Minister for the Civil Service, the Prime Minister. He may delegate the job of classification to responsible authorities, which may not be within Government Departments proper—a matter which is referred to in Clauses 12 and 13 of the Bill ; and the definitions of "Crown servant" and "government contractor" are very wide and may be extended by statutory instrument—a matter which is dealt with in Clause 14. These provisions suggest the possibility of an almost unlimited extension of official status over bodies and persons having some relation to Government. So that there is, and has been expressed, some unease there. I suggest, and agree, that this is something on which further discussion and clarification are needed.
A further point to which reference has been made tonight by my noble friend Lord Hutchinson of Lullington, my noble friend Lord Ardwick, the noble Lord, Lord Goodman, and my noble and learned friend Lord Elwyn-Jones, clearly disturbs some people and it concerns the proposed Minister's certificate. The Minister's certificate, that unauthorised disclosure may cause serious injury and so on, is under the Bill conclusive, as has been pointed out tonight, and is not open to challenge in the courts. It is not subject to any check either by the Attorney-General, as was proposed by the last Government, or by the Security Commission.
This is something which was referred to specifically by my noble and learned friend Lord Elwyn-Jones, and was proposed by the then Opposition; that is to say, by a Conservative Front Bench spokesman in Standing Committee C in the other place on 8th February this year, on Mr. Clement Freud's Official Information Bill. The Minister would thus be judge in his own cause and some would therefore see him as not genuinely responsible to Parliament, as he may decline to answer questions on such matters. In making reference to this point I referred to the Attorney-General, and it is of course the case, too, that the Attorney-General's role under the Bill is limited only to consenting to prosecutions—a role that he would have had under the White Paper as well.
Again—a further matter which has been causing some concern, not only to Mem- 672 bers of your Lordships' House but to some outside as well, and which was referred to tonight by my noble and learned friend Lord Elwyn-Jones and by the noble Lord, Lord Wigoder—is that the Bill creates a separate category of information relating to security or intelligence, which is not subject to any test of serious injury or otherwise. So this means that any information about security or intelligence is protected, whether or not it is already common knowledge. As I understand it, there is no defence under Clause 7 except in connection with the offence—which is an additional offence—of disclosing information about protective security measures. Here the burden of proof is on the defendant to show that disclosure could not lead to unauthorised access to other protected information, and the objection which some have put forward is that this practically precludes altogether any public discussion of security matters.
I mention this as another example of matters about which people have expressed doubts and where further discussion might therefore be appropriate, if not very necessary. There are, of course, others. Among those mentioned tonight was the matter of telephone communications, referred to by the noble Lord, Lord Wigoder. This relates to a highly sensitive field, not dealt with either in the Franks Report or in the last Government's White Paper of July 1978. I think that we shall need to look carefully at those matters.
One of the most unfortunate features—not so much about the Bill itself but about the way in which this measure has been brought forward, if I may say so with great respect—is that there seems to have been a singular and sad lack of communication and consultation by the Government with other bodies on a matter which has, by its very definition alone, to do with communication. The question of consultation has been referred to tonight by, among others, the noble Lord, Lord Goodman. In the Labour Government's White Paper, for example, of July 1978 there was a relevant and, if I may say so—I was not responsible because I was not in the Government at that time so perhaps I can mention it without immodesty—very pertinent point at paragraph 25 on page 14. This was something which I believe was alluded to by my noble and 673 learned friend Lord Gardiner. The paragraph says that it was suggested in the Franks Report that the Government should enter into discussions with representatives of the news media and with any other interests directly affected with a view to the establishment of an informal committee on classification, and that the Home Secretary would be ready to initiate the discussions as recommended nearer the time that it seemed likely that a Bill was to be introduced.
Then, in March 1979, there was published another document, the Green Paper, to which some reference has been made tonight by certain noble Lords. This was intended to lead to discussions and, indeed, to consultations—and I stress that word—on those topics. I refer in this connection, too, to a point which was made by the noble Lord, Lord Wigoder. He made it clear that he will not be able to support the reform which is before us tonight unless it is coupled with a move towards freedom of information. He endorsed, as I do now, a request which was made by my noble and learned friend Lord Elwyn-Jones for information from the Government—if not tonight, then certainly very soon indeed—about the moves which they propose to make in the direction of freedom of information.
It cannot have been often that there has been a measure so early in the life of a Government or a Parliament of which in the Press, irrespective of political view or colour, there has been such widespread condemnation or at least such widespread scepticism, a point referred to by my noble friend Lord Ardwick. This is especially sad when what we are united upon is the need for reform in this whole sphere. If there have been consultations it would seem that they have not been very fruitful. But whether or not they have been, and whether or not they have been adequate, there is now clearly a need, in my submission, for the widest possible examination and for a dialogue, so far as that is now open to us as the debate proceeds in your Lordships' House. For what is clear is that there need to be substantial improvements made.
§ 6.35 p.m.
§ Lord BELSTEAD
My Lords, the noble Lord, Lord Boston of Faversham, has just referred to scepticism about the 674 drafting of the Bill whose Second Reading my noble and learned friend the Lord Chancellor has introduced today. I hope that the noble Lord, Lord Boston of Faversham, will not think that I am being discourteous if I turn from his speech, which I found very interesting—indeed, we shall certainly look extremely carefully at many points in it—to my noble and learned friend's speech and say that I think that the first significant point in the debate has been the one made by him; namely, that there is a broad measure of agreement that we need to do something about Section 2.
Certainly I realise that the noble and learned Lord, Lord Gardiner, made the point—and I would not venture to disagree with him, speaking from his experience—that nothing very undesirable seems to have occurred in recent years because of the existence of Section 2. However, I was surprised that the noble and learned Lord could say that, when one remembers the pretty trenchant criticism in the Franks Report about having legislation which was so wide and uncertain as to be almost unintelligible and unworkable. In saying that there is a broad measure of agreement, I realise also that the noble Lord, Lord Ardwick, expressed the fear that the "punt gun", as my noble friend Lord Campbell of Croy described Section 2, would be replaced by a Bill which would be an Armalite riffle. That apprehension is misplaced. I say that because I believe that the case which was argued both in the Franks Report and in the previous Government's White Paper refutes many of the doubts which have been expressed today—a report and a White Paper, incidentally, upon which this Bill is mainly based. Your Lordships' speeches will undoubtedly provide fuel for a very great deal of discussion, if this Bill is given a Second Reading.
The debate today undoubtedly provides us with a very useful background to consider urgently the points which noble Lords have made. In doing this, we shall of course be bearing in mind that we are according to the death of Section 2 a good deal more attention than accompanied its birth. The noble and learned Lord, Lord Elwyn-Jones, reminded us of this. That Bill was brought forward at a time of some national tension to deal primarily with other matters, and 675 Section 2 was barely discussed in the parliamentary debates of the time. All I can say, having sat through a lengthy as well as an interesting debate, is that your Lordships have already shown today that this House is not going to be so remiss on this occasion.
If the noble and learned Lord the Lord Chancellor describes the Bill as highly technical, your Lordships can guess my state of mind in attempting to make my own way through the provisions of each clause. I suspect that in some cases there has been an expectation that the replacement of Section 2 would involve the substitution of a provision not substantially more complex. But that simply cannot be. I appreciate that the Bill is complex but this is, I think, the inevitable result of seeking to do what many of us are agreed must be done; namely, to define precisely the circumstances in which the disclosure of official information should be penalised. The brevity of Section 2 is in some respects the consequence of the breadth of its scope, and because we are not being so sweeping in this Bill the fact of the matter is that we cannot be so brief.
The noble and learned Lord, Lord Elwyn-Jones, and, indeed, the noble Lord, Lord Boston of Faversham, both at the beginning and at the end of this debate have, I think it is fair to say, made clear their unease with Section 2 but have linked their expressions of concern with a wish to know more about what are the present Government's views on, if I may use shorthand, open government.
This Bill is not, as my noble and learned friend made clear, about freedom of information or open government. The Government's view is that legislation is not the only way to achieve greater openness in Government, and in saying that I am encouraged by the speeches which were made by the noble Lord, Lord Goodman, and my noble friend Lord Derwent. As a Government we have made clear our policy in another place—to make as much information as possible available, including background papers and analytical studies relevant to major policy decisions. This policy amounts to a reaffirmation of the directive promulgated to Departments in July of 1977 by the then head of the Home Civil 676 Service. I will not go on about that because we are at the end of a long debate, but I will add one other point on this subject. In addition to that the Government believe that the reforms of the Select Committee system which the House of Commons has recently decided will provide a very important contribution to greater openness in government of a kind which accords with our parliamentary and constitutional arrangements.
Starting with the speech made by the noble Lord, Lord Wigoder, several noble Lords have, I admit, criticised the Bill as being more restrictive in the sense that it will create—so noble Lords have asserted—a situation which is more restrictive than the present situation under Section 2. I should like to reply by looking at Clause 4, the offence of the ordinary citizen. After all, this clause gives the citizen a degree of protection that Clauses 2 and 3 do not afford to the Crown servant or Government contractor. The essential point is that in the case of the citizen the prosecution have to prove, beyond reasonable doubt, that the accused appreciated that the information he disclosed was protected under the Act, and that of course is a stiffer test than what is proposed for Crown servants and Government contractors.
So what we are talking about in this Bill is the case of a citizen, and I realise that in talking about the citizen many of your Lordships have been speaking of representatives of the Press. But we are talking about a citizen who discloses information otherwise than in accordance with an official authorisation and fully appreciating that it is both in a protected category and is official information. I really do not think that that can fall into the category of having an axe falling unpredictably on the head of somebody, as the noble Lord, Lord Hutchinson, described the effect of the Bill.
I realise also from speeches which your Lordships have made that some of your Lordships feel that it is oppressive to cast the definition of security or intelligence so wide that a citizen who discloses even trivial information about these matters is liable to conviction and a sentence of two years' imprisonment. The fact is that there are certain areas where the safeguarding of the nation's interests is essential. The previous Administration 677 recognised in its White Paper of July of last year, at paragraph 31, that despite the view of the Franks Committee of this particular point, information relating to security and intelligence was deserving of the highest protection, whether or not it met the test that its unauthorised disclosure would be likely to cause serious injury to our national interests. I trust that noble Lords opposite remain of the same view. I might add that I do not sense that those who criticise this overall coverage of security or intelligence matters are likely to complain at the similar protection that we propose to extend to the confidences of the citizen.
I now move on to Clause 7 which, again from the Opposition Front Bench, was raised, I think, in both the opening and the closing speeches. It provides the defence in the case of material in the law and order, foreign, commercial and personal confidences, that the information was previously available to the public. Noble Lords have raised the possibility of extending this defence to other categories of information: defence and international relations, security and intelligence and intercepts. Clearly there are arguments both ways on this and I realise that different views are held. For what it is worth my own view is that the difference in kind between these types of information justifies the selective approach that we propose. But if your Lordships give the Bill a Second Reading then in Committee we shall be able to examine the matter more deeply. In the meantime we shall certainly consider the points which have been made.
The noble and learned Lord, Lord Elwyn-Jones, raised a specific point on this clause which confers a defence in relation to information protected by Clause 1(1) sub-paragraphs (c), (e) or (f), the noble and learned Lord asking that the information having already been made available to the public, or to a section of it, should mean that it had been made officially available. The answer to the noble and learned Lord's question is, No. So long as information is available it does not matter how it became so—whether officially or not. That is, as the Bill is drafted.
I turn for a moment to the question of classification, which several of your Lordships have raised. The Bill provides, in 678 Clauses 12 and 13, for the classification of material in the defence and international relations categories and I realise that I am speaking to noble Lords—and to the noble Lord, Lord Hutchinson, in particular—who have immense experience in this field. But I hope your Lordships will forgive me if I say that the point made by the noble and learned Lord, the Lord Chancellor, bears repeating—the fact that new material is classified and marked as such, under this Bill has no direct bearing on the offences. However, classification markings will have the dual purpose of warning those handling the material that it is protected and, in consequence, of providing evidence in a subsequent prosecution bearing on the issue, whether the accused appreciated that the material was protected or not.
Many of your Lordships referred to the regulation—making power to be found in this part of the Bill. The regulations provided for here will set out the general system and provide for the appropriate delegation of levels of decision-making on classification. These are supposed to be enabling powers and will clearly take into account any views which your Lordships have been expressing and will express, and particularly the views of my noble friend Lord Campbell of Croy, who expressed particular interest in the future classification. Clearly a Minister must remain the final arbiter in these matters, but he cannot himself classify all the papers in his department and this regulation-making power is supposed to take care of that.
I now move from that to the certificate issuing power of a Minister. There were many points made on this and I will go to the speech made by the noble Lord, Lord Hutchinson. The noble Lord made many points and, if he will forgive me, I am not going to try to answer them, but on this one I should like to take issue with the noble Lord when he implied that the Minister will issue a certificate without reviewing the whole circumstances of a case. On this point our proposals in Clause 8 are exactly in line with Franks. Of course the Minister will review the circumstances of a case before issuing a certificate, just as Franks intended. We are not proposing to protect information by reference to its classification, so it is the nature of the information, rather than its classification, that the Minister must 679 consider. This technical point apart, what we propose is actually what Franks recommended and it is precisely, of course, what was recommended in the previous Government's White Paper.
Many of your Lordships, not least my noble friend Lady Hornsby-Smith, have put points to me which should be replied to, but I really think it might he your Lordships' wish that we should draw the debate to a close, provided I give a genuine undertaking that the points will be looked at most carefully. However, there are two points which I think I must reply to. First, the noble and learned Lord, Lord Gardiner, asked me a direct question about the definition of the expression "security or intelligence" which is to be found printed in Clause 1 (1) (b). As the noble and learned Lord will have noticed, of course this is defined in Clause 14 under the definition of "security or intelligence". If the noble and learned Lord wishes me to add anything to that definition which is to be found in Clause 14, the only words I can give him are that the definition means Her Majesty's foreign and other secret services and Government communications headquarters.
Finally, my noble friend Lord Campbell of Croy summarised succinctly the Franks argument that Cabinet papers should be protected because of the Cabinet's special role in Government. All I can say on this is that we and the previous Government concluded that this would be drawing the field too wide. Of course, Cabinet papers will be protected if their subject matter justifies this—for instance, defence—but, for the rest, as I think my noble and learned friend said far better than I can, it seems best to rely on the judgment of Ministers and on disciplinary sanctions. I sense that the House would feel any other approach to be unnecessarily restrictive, and I hope I shall be allowed some credit for one point on which, quite clearly, we are taking a rather more liberal line.
Lord CAMPBELL of CROY
My Lords, if my noble friend will allow me to interrupt, I did not in fact mention Cabinet papers and it was not my purpose to disagree, because I believe that there need not be a rule to protect Cabinet 680 papers. My point was protecting the information that a Minister or Ministers had been in a minority against an important decision announced by the Government, but I was not concerned to protect Cabinet papers as a whole.
§ Lord BELSTEAD
My Lords, I apologise to my noble friend for misunderstanding him. If the Bill is given a Second Reading perhaps we could return to this point at the next stage.
My Lords, this debate has, I think, underlined a large measure of agreement that certainly Section 2 really has got to go. I must confess that I had expected to hear views expressed in rather more ringing tones that the proposals of the Franks Committee provided a sure basis for the making of new law. I believe, speaking on behalf of the Government, that if this Bill receives a Second Reading, in Committee your Lordships will find that it in fact provides improvements on some of the Franks proposals; and indeed the noble Lord, Lord Boston, was good enough to suggest this in certain respects. I am sure it should replace Section 2, for which the case for abolition is I think absolutely overwhelming. On those grounds, I ask your Lordships to agree that the Bill should now be read a second time.
§ Lord ELWYN-JONES
My Lords, before the noble Lord concludes, I wonder whether he can respond to the suggestions of the noble Lord, Lord Goodman, and my noble and learned friend Lord Gardiner about the desirability of further consultations with people in the Press Council and with the persons who were mentioned by my noble and learned friend. I am sorry to burden him further, and I am grateful to him for having covered so much ground.
§ Lord BELSTEAD
My Lords, I am grateful to the noble and learned Lord for making the point again and thereby underlining it. The undertaking I give is that I will personally draw this point to the attention of my right honourable friend the Home Secretary. With that, I hope that your Lordships will agree that this Bill should be read a second time.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.