HL Deb 12 February 1985 vol 460 cc129-34

4.24 p.m.

The Lord Chancellor

My Lords, I understand that this would be a convenient moment for the Statement to be repeated, and, if so, I shall now do so.

With the permission of the House, I shall repeat a Statement which has now been made by my right honourable and learned friend the Attorney-General in another place. The Statement is as follows:

"With permission, Mr. Speaker, I would like to make a Statement on my decision to prosecute Mr. Ponting. On 13th August 1984 certain facts were drawn to the attention of the Director of Public Prosecutions by the Ministry of Defence. In my absence the Director of Public Prosecutions consulted my honourable and learned friend the Solicitor-General the same day. On 16th August 1984 a report by the Ministry of Defence Police was sent to the Director of Public Prosecutions. My honourable and learned friend"—

that is of course the Solicitor-General—

"and the Director of Public Prosecutions considered that report on 17th August and both formed the view that this was a serious breach of duty and trust by a senior civil servant. They decided to consult me and I was telephoned on the same day. The facts as reported by the Director of Public Prosecutions were explained to me. The nature of the documents which had been communicated was described and I was told that the Director of Public Prosecutions and the Solicitor-General advised a prosecution. Having considered the facts myself I too decided that the case fell within my published guidelines and that there should be a prosecution.

Neither I nor the Solicitor-General nor any of my officials sought the view of or consulted any other Minister, nor was the view of any other Minister conveyed to us before the decision was taken."

My Lords, that concludes the Statement by my right honourable and learned friend.

Lord Elwyn-Jones

My Lords, the House will be grateful to the noble and learned Lord the Lord Chancellor for repeating the Statement of the learned Attorney-General in another place. Perhaps it is too early to hold an inquest on the Ponting case, with its vivid illustration of the independence of the jury in this country. But the case does give rise to many questions which call for an early answer.

One is the nature of the duties owed by Ministers and civil servants to Parliament itself. Another is the question as to how long Section 2 of the Official Secrets Act should still be relied upon in prosecutions. In particular, why on earth was it relied upon in the Ponting case? First, the prosecution conceded in that case that no disclosure of information relating to security matters arose in the case at all. Secondly, none of the documents that were disclosed to the Member of Parliament by the civil servant was even classified at any material time. In those circumstances, why were Section 2 proceedings brought?

The discredited Section 2 of the Official Secrets Act has not been used for a very long time in cases with no security implication. Why was it dug up in this case? Has a change of policy been made by the present Administration in desperate response to a series of leaks? Was it intended as a process to bring civil servants to heel?

In the light of the outcome of the case, may we at least express the hope and indeed assume that no Section 2 proceedings will again be brought in cases with no element of risk to the national security? Better still, is it not now high time to introduce, in place of Section 2, a code of the kind which the noble and learned Lord the Lord Chancellor referred to in 1979 in introducing the Protection of Official Information Bill at that time, when he said: 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"?—[Official Report, 5/ l 1/79; col. 608.] Is it not high time that that change was made?

Lord Wigoder

My Lords, I have no doubt that all my noble friends on the Alliance Benches will have welcomed the verdict that was reached in the case yesterday. Having said that, may I make two observations that may not perhaps meet with the unanimous approval of all those who have been welcoming that verdict? First, I can see no reason why Mr. Ponting should be elevated to be some form of folk hero. There are many of us who want to see the abolition of Section 2 of the Official Secrets Act, or at any rate its drastic reform, who at the same time recognise that there is a place for the concepts of confidentiality and loyalty both in the Civil Service and throughout industry as well. What we query is the wisdom of seeking to enforce those concepts by means of the clumsy machinery of the criminal law.

Secondly, it would also be wrong to seek to paint the trial judge as the villian of the proceedings. It would be presumptuous of me to attempt to comment on the correctness of the trial judge's ruling as to the law; but I hope that I can be allowed to say that in all the Section 2 cases in which I have been involved I would have anticipated a direction of precisely that sort, and I venture to doubt whether if there had been a conviction yesterday much change would have been secured out of the Court of Appeal or your Lordships' House in due course.

Having said that, and perhaps because of the fact that it may well be that the judge's direction was correct yesterday, I would ask the noble and learned Lord whether that does not in fact underline the unhappiness of the decision to prosecute in this case. Not because of the result yesterday—that in a sense speaks for itself—but because had there been a conviction yesterday the result would have been equally unhappy, in that a very large number of members of the public would have regarded the proceedings as contrary to all their sense of justice.

That underlines, too, does it not, the observation of the noble and learned Lord, Lord Elwyn -Jones, about the crucial role of the jury in this case? The noble and learned Lord will agree, I am sure, that one of the essential roles a jury plays is its right to act according to its common sense and according to its sense of justice irrespective of the state of the law as it is no doubt correctly explained to them. Perhaps that demonstration of that desirable role which the jury performed yesterday will be borne in mind by the noble and learned Lord, Lord Roskill, whose committee is at the moment inquiring into whether juries should be retained in long fraud cases.

One other matter arises in relation to the jury in yesterday's case. I do not know, of course, what took place in that part of the proceedings which took place in camera. I find it difficult to imagine that there could have been anything in the nature of the evidence, anything in the so-called "crown jewels papers", which warranted the Attorney-General in embarking upon the cumbersome and prejudicial procedure of jury vetting. I hope that that procedure will only be embarked upon in very rare cases in future.

Finally I should like to support what the noble and learned Lord, Lord Elwyn-Jones, said about the miserable Section 2. I think it is now 12 or 13 years since my noble friend Lord Hutchinson of Lullington and I were in a case which finished with the trial judge saying that it was time that Section 2 was pensioned off. That was 12 or 13 years ago, and it is now too late to pension it off. It is, I believe, dead. I hope that the noble and learned Lord will be able to give us an assurance that it is now regarded as such, and that he will see that steps are taken to ensure that that section is repealed and replaced by something which is more in keeping with the demands of our time.

4.30 p.m.

The Lord Chancellor

My Lords, the noble and learned Lord and the noble Lord, Lord Wigoder, thanked me for repeating the Statement. I must say I was in some doubt as to whether constitutionally I ought to do so. I thought it had been established beyond doubt that when an Attorney-General instituted proceedings for any offence whatever he was acting in his official capacity—sometimes called quasi judicial, but, I think, unfortunately—as a Law Officer and that the Government had no responsibility.

He is liable to be interrogated in the House of Commons. This is clearly the constitutional practice. But I, speaking in your Lordships' House, have to speak on behalf of the Government. I therefore have grave doubts and reservations as to how much I ought to say in answer to noble Lords who have so far spoken, owing to the fact that they asked questions which were clearly outside the ambit of the Attorney-General's Statement, which was, if noble Lords will recollect, confined to the question as to why he instituted prosecution proceedings in a particular case —a matter upon which I can, as a member of the Government, offer no further explanation than has been forthcoming from him. I should be disloyal both to him and to the constitution if I attempted to do so.

Having said that, perhaps I should say that it is of course quite true that ever since 1911 Section 2 of the Official Secrets Act—which was passed by a Liberal Government, and shows some of the love of verbiage for which certain Liberals are famous—has been under attack. It existed unaltered during the reign of about 15 Prime Ministers and 25 Home Secretaries, including the reign as Attorney-General of the noble and learned Lord who in his remarks so firmly asked for its abolition and replacement.

I had the privilege—if that is what it should be called—in 1979 (and I would not have mentioned it but for the fact that the noble and learned Lord mentioned it first) of introducing the Protection of Official Information Bill, which was going to do exactly what the noble and learned Lord now asks should be done. Unfortunately, like many law reforms of value, it was obstructed in your Lordships' House and had to be withdrawn. It was not obstructed by the members of the Government Benches, so that I do not know that anyone really comes very well out of that.

Lord Hatch of Lusby

My Lords, may I ask the noble and learned Lord on the Woolsack speaking as a member of the Government whether it is not the case that the evidence presented in the Ponting trial by both prosecution and defence, setting apart the verdict entirely, establishes the fact that Ministers of the Crown have deceived both Parliament and public in their account of the circumstances of the sinking of the Argentinian cruiser "Belgrano"?

The Lord Chancellor

My Lords, I thought I had made it clear so that even the noble Lord would understand that the Statement related to the question of why prosecutions were instituted. If he thinks he is going to divert me into the King Charles's head of the sinking of the "Belgrano'', he is greatly mistaken. I am not such a fool as that.

Lord Renton

My Lords, I wonder whether the noble and learned Lord would be able to help us to reach a judgment on the merits of the prosecution if he could tell us whether Mr. Ponting had the courage to tell any Minister, or his Civil Service superior, what he intended to do with those documents, or did he merely let suspicion fall on other civil servants?

The Lord Chancellor

My Lords, I think I can understand what has led my noble friend to ask that question. But I think I must pursue a policy of strict consistency in this matter. We are not dealing with the merits of the Ponting case but with why proceedings were instituted.

Lord Hooson

My Lords, within the strict ambit of the Statement, does this not give the impression of a decision taken in haste? In August, as I understand the Statement, a discussion took place between the Director of Public Prosecutions and the learned Solicitor-General. A communication was made to the learned Attorney-General, who, I understand, was then on holiday in France, and a decision was taken by him in France to proceed.

What was the haste? I think it was the noble and learned Lord, Lord Devlin, who said: Each jury is a little parliament, and the jury sense is the parliamentary sense. In the light of the fact that it was so important constitutionally so far as the Government were concerned if there was an adverse verdict, what was the haste? Why was it necessary to take the decision when the learned Attorney-General was on holiday?

The Lord Chancellor

My Lords, I do not go along with the noble Lord at all. The Statement shows that the case was very carefully considered in the light of a report from the Ministry of Defence police by the Solicitor-General and the Director of Public Prosecutions in consultation with one another. Of course since the Attorney-General's personal consent was required anyhow in a case of this importance—and I think explicitly, if my memory does not deceive me, under Section 2 of the Official Secrets Act—they communicated their advice to him with the material upon which they had arrived at it. I think that my right honourable and learned friend was positively entitled to rely upon that material in giving his authorisation as he said he did.

Lord Elwyn-Jones

My Lords, in response to what the noble and learned Lord has said, may I make it clear—because perhaps his cheerful observations did not do so—that there is no opposition from this side of the House to the Protection of Official Information Bill. Discontent about Section 2 has gone on for a long time; I suffered under it myself as Attorney-General. Now, in the light of this experience in this trial, is it not an urgent necessity to get rid of the wretched thing and to put something more liberal and more effective in its place?

The Lord Chancellor

My Lords, I am concerned to reply only in relation to the Statement of my right honourable and learned friend. The obervations of the noble and learned Lord will obviously reach the ears of my right honourable friend the Home Secretary.

I remember the difficulties experienced by the noble and learned Lord when I was Opposition spokesman for the Home Office. I tried to help him all I could in the difficulties in which he then was, but I noticed that no satisfactory substitute for Section 2 emanated either from him or from his colleague in the Home Office, or rather the succession of colleagues at the Home Office at that time.

I am not sure that I can go much further than to say that changes in the criminal law are a matter for the Home Office. I agree with some of the remarks made from the Liberal Bench—that an impartial and loyal Civil Service is just as important a part of our constitution as is an impartial, loyal and upright Judiciary.

Lord Simon of Glaisdale

My Lords, although in the instant case the Cabinet had no part in the institution of these proceedings, as indeed it very rarely, almost never, does these days, I hope that it will not be accepted that the Cabinet is never entitled to have a hand in the institution of prosecutions. At the time of the Campbell case in 1924 Cyril Asquith, who was subsequently a Member of your Lordships' House, pointed out that it was unthinkable that the Liberal Government before the Great War should have had no say in whether the leaders of the Ulster Party were or were not prosecuted for sedition—a decision on which the whole future of Ireland might depend.

So I hope that my noble and learned friend on the Woolsack will be able to assure your Lordships that, quite apart from questions of Ministerial collective responsibility, there might well be cases where the Cabinet is entitled to intervene, so long as it does so openly.

The Lord Chancellor

My Lords, I am grateful that my noble and learned friend on the Cross-Benches (who has the additional experience of having held a Law Officership under the Crown) should have raised this question. It was clearly established in the aftermath of the Campbell case that it was utterly unconstitutional for the Cabinet to attempt to intervene or to give directions either to prosecute or not to prosecute, or even to give instructions to the Attorney-General. I hope that any Government likely to occupy a responsible position in this country will adhere to that clear decision given at that time, which was followed by the Labour Government when Sir Hartley Shawcross, as he then was, made an important statement about the role of the Attorney-General during that Labour Government.

Lord Hatch of Lusby

My Lords, I should be the last in this House to attribute foolishness to the noble and learned Lord on the Woolsack. But as he has refused, as he is so entitled, to answer my question, and as I am quite sure that he is just as anxious as the rest of us to preserve the important principle of honesty between Ministers and Parliament and the public, can he advise me whether there will be another opportunity when and another Statement on which the conduct of Ministers, as revealed by this trial, will be open to questions by Members of Parliament?

The Lord Chancellor

My Lords, it is no part of my duties to advise the noble Lord.

Viscount Whitelaw

My Lords, it is a part of my duties so to do and I suggest to the noble Lord that there are many ways in which he may raise this matter; but now is not the occasion for one of them.

Lord Jacques

My Lords, before we close this matter will the noble and learned Lord, as a member of the Government, give us an assurance that there will be another occasion when we can ask more pertinent questions?

The Lord Chancellor

My Lords, it is not for me to give assurances of that kind; it is for my noble friend the Lord President of the Council.

Viscount Whitelaw

My Lords, I think that I have made it clear to the House that there are occasions when such matters can be raised. I think the noble Lord will have heard what I said, and I stand by it.