§ 3.4 p.m.
§ Lord Wigoder rose to move to resolve, That this House calls upon Her Majesty's Government to introduce legislation which will repeal Section 2 of the Official Secrets Act 1911 and replace it with a measure which would protect specified classes of information whose wrongful disclosure would cause serious national harm; and to bring forward proposals to establish a general right of access by the public to official information, subject only to specific exemptions.
§ The noble Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. I should like to begin by making it clear that at least for my part it is post Ponting rather than propter Ponting. I have no desire to examine the particular circumstances of that unhappy case, although from time to time it might be necessary to refer to it. What I seek to do is to see whether there can be established in your Lordships' House a general consensus of opinion that Section 2 of the Official Secrets Act ought to be repealed and ought to be replaced by something far more specific and far narrower in its provisions, and also to see whether there is a general consensus of opinion that the public should have increased access to official information.
§ I have no desire to inflict upon your Lordships a history lesson. I refer only for a moment to 1889, which was the year when the first Official Secrets Act was passed. I do so merely to draw your Lordships' attention to the fact that in that Act it was made an offence for a Crown servant to communicate official information to a person to whom it was not in the interests of the state or otherwise in the public interest to communicate it. That was an interesting expression, "in the interests of the state or otherwise not in the public interest". If that phrase had been in the existing Section 2 of the 1911 Act, there would have been no difficulty about the recent trial at the Central Criminal Court. As it was, I am bound to say, referring to that trial for, I think, the last time in the course of my observations, that the trial judge, if I may respectfully say so, was entirely right in his interpretation of the expression "in the interests of the state". He did no more than follow the case of Chandler in 1963 in which, if I remember rightly, my noble friend Lord 551 Hutchinson of Lullington led me for the defence. Contrary to appearance, my Lords, he is in fact a year or two older than I am! It is clear that the trial judge was right and that much of the criticism levelled at him has been wholly irresponsible.
§ Section 2 of the 1911 Act was passed, indeed, the whole Act was passed, I am sorry to have to say, by a Liberal Government. It was passed, having been discussed for rather less than half an hour in the other place and for not much more than half an hour in your Lordships' House at a time when there was a scare about German espionage. I can only say that perhaps even the greatest of Liberal Governments, the greatest of Governments, indeed, are entitled to make just one error in the course of their lifetime.
Section 2, because of the various disjunctives employed in it, creates in fact something over two thousand different offences. Eliminating the various alternatives, the essence of it is this—and I quote the relevant words:
If any person having in his possession … [any] information … which he has obtained owing to his position as a person who holds … office under Her Majesty, … communicates [it] to any person, other than a person to whom he is authorised to communicate it, or a person to whom it is in the interest of the State his duty to communicate it, … shall be guilty of [an offence]".
In other words, it applies to any information which a civil servant has obtained owing to his position.
§ There are four objections to Section 2 as it stands. The first is that it is ludicrously wide in its application. Taken literally, it means that it would be an offence to disclose what type of biscuit the Secretary of State has with his morning coffee; what is the colour of the carpet in the Secretary of State's room. All these are matters which come, strictly speaking, within the purview of Section 2 as it is now drafted.
§ The second complaint about Section 2 is that in an attempt to restore some common sense to the situation, the Attorney-General's consent is made necessary before there can be a prosecution. That may, of course, eliminate some of the more frivolous prosecutions; nevertheless it leads, and must lead, to an entirely random and haphazard application of the Act. Some Attorney-Generals might well have prosecuted Ponting and not Miss Massiter. Other Attorney-Generals, equally properly, might have taken precisely the opposite course. It is wrong that in a matter of this kind so much should depend upon the whim of an Attorney-General, however responsibly—I make no criticism of any Attorney-General on this matter— he seeks to exercise a quite impossible responsibility.
The third objection to Section 2 as it stands is one which we on the Liberal and SDP Alliance Benches feel particularly strongly. It seems to place politicians, and particularly Governments, in a privileged position. It sets out a situation in which they are to be regarded as more important than any of the other great organisations of this country. Many of them do far more good for the people of this country than any Government have ever done. This is an attitude of mind perhaps exemplified by the present Prime Minister when she wrote these words in February this year to Mr. Kinnock:
Civil Servants, whatever their rank, have a special degree of responsibility imposed on them by the nature of their office, and their duties, and by the confidence that is thereby reposed in them".
§ All of us would accept that there is a very important place for confidentiality, trust and loyalty, not only inside the Government but outside in all the various organisations to which I have referred. It seems to us quite wrong that criminal sanctions should be available against the civil servant when other organisations manage perfectly satisfactorily with their ordinary internal disciplinary processes without need for recourse to the criminal law.
§ The fourth objection to Section 2 is one that I cannot elaborate upon because it would take much too long; but towards the end of Section 2 there are a series of subsections which make it an offence also for people to receive and transmit information that has been improperly divulged to them. Those subsections are extremely difficult to construe or to understand. Again the most important case under that section which your Lordships may remember in the early 1970s involved the Sunday Telegraph and Mr. Jonathan Aitken. Lord Hutchinson and I stood this time side by side and endeavoured to analyse the meaning of that part of the section. It so happens—this is not in any sense a commercial—that the defendants were acquitted and therefore the argument never went to the Court of Appeal and never received higher judicial authority. But it was quite clear that the remaining part of Section 2 is extraordinarily difficult to understand and construe, and it is ambiguous to a fault.
§ In those circumstances, it is perhaps hardly surprising that a demand has grown up for repeal of Section 2 and for its replacement by specific limited provisions that would set out precise areas in which it would be an offence for information to be wrongly communicated. I take on board of course the danger that if the existing Section 2—which is to some extent inoperable and unenforceable as we have seen from recent events—is replaced by an effective Section 2, it may result in rather more prosecutions than are taking place at the moment. Nevertheless, I believe there is a real case for replacing Section 2 by something far more precise and for not having such an appalling piece of legislation on the statute book. At the same time there has grown up a movement asking not only that Section 2 should be repealed, but also that the public should have a greater access to official information. This is the reverse side of the coin.
Without going back further than 1970 I can quote the Conservative Party manifesto at that election. The Conservatives pledged themselves to eliminate unnecessary secrecy concerning the workings of Government. Whoever drafted those words might perhaps have had a wry smile the day before yesterday as he listened to the exchanges in your Lordships' House between my noble friend Lord Gladwyn and the Government. They pledged themselves to do that, which they did not, and also to review the operation of the Official Secrets Act, which they did. They set up the Committee presided over by my noble friend Lord Franks. That Committee reported in 1972. The Committee, in its own words,
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. A catch-all provision is saved from absurdity in operation only by the sparing exercise of the Attorney General's discretion to prosecute. Yet the very width of this discretion, and the inevitably selective way in which it is exercised, give rise to considerable unease. The drafting and
interpretation of the section are obscure. People are not sure what it means, or how it operates in practice, or what kinds of action involve real risk of prosecution under it.
That Committee, not surprisingly, had the advantage of the assistance of the Attorney-General who gave evidence at the time. He is now the noble and learned Lord, Lord Rawlinson of Ewell. In his evidence at the time the noble and learned Lord said:
Much information in the hands of Civil Servants and others can be disclosed without any damange to the interests of the State, and it is wrong in principle that a criminal statute should make it an offence to do something which is not contrary to the public interest. I would welcome therefore a solution which narrowed the categories of information to which the section applies.
§ It is hardly surprising that in those circumstances the Franks Committee suggested the repeal of the Act and proposed its substitution by a series of measures that might perhaps form the basis of any future action on Section 2. The Committee recommended, first, that there should be a general protection against disclosure of information which might injure the security or safety of the state or the community. I do not think anybody would quarrel with that. Secondly, they proposed that there should be a series of specific subjects in which, equally, the following areas of disclosure should be prohibited. They were: defence and internal security, foreign relations, and the value of sterling and the reserves, Cabinet papers, law and order, and the affairs of private citizens and private concerns. Some of us may wish to discuss in detail one or other of those headings. However, I believe that the report and the recommendations of the Franks Committee provide a basis upon which we can act in future and perhaps have our discussion this afternoon.
The result of the proposals of the Franks Committee was no more than that in 1973 the Government in the other place debated them on a Motion to take note of the situation. Despite their pledge to legislate, nothing further happened until the Government, as your Lordships will remember, fell in 1974. They were replaced by a Labour Government. The Labour Government made a brave promise in their manifesto. They said they would,
replace the Official Secrets Act by a measure to put the burden on public authorities to justify withholding information".
§ They did not. What happened was that in November 1976, some two years later, there was a statement by the Home Secretary which, in essence, accepted most of the proposals of the Franks Committee and promised legislation in the following Session. That never arrived. There was a White Paper in 1978, but there was no legislation and that Government fell in 1979.
§ A Conservative Government were then returned. This time there was no pledge in the manifesto, but a promise in the Queen's Speech to replace Section 2 of the Official Secrets Act. At least that Government tried to do so. In October 1979 they introduced a Bill called the Protection of Official Information Bill. Those words really say it all. It was not a Freedom of Official Information Bill: it was a Protection of Official Information Bill. It is not entirely surprising that its very restrictive provisions were found to be so offensive that the Government were mauled—if that is the right word—in the Second Reading debate in your Lordships' House where the Bill was introduced. I am happy to have taken a small part in the mauling and 554 the Bill was withdrawn altogether some 15 days after Second Reading in your Lordships' House. Perhaps the moral of this is that parties, when they are in opposition, find access to official information and reform of the Official Secrets Act a very tempting programme, and one upon which it is indeed possible, perhaps, to gain a substantial number of votes. When they get into office they appear to be overwhelmed by the Whitehall ethos, and they find, for one reason or another, that it is quite impossible to make any progress.
§ Alongside these various Government measures there have of course been one or two private Members who have sought to take the matter further. The most successful (the only one, I believe, whose Bill became an Act) was in 1960, when a Private Member's Bill was brought in which gave the public the right to attend local authority meetings—a great step forward. It was introduced and piloted through the other place by a young lady with the name of Mrs. Margaret Thatcher. There have been other measures since. My honourable friend Mr. Freud introduced a Bill in 1979; Mr. Meacher introduced one later in the same year; Mr. Hooley introduced one in 1981; and there is one before the other place at the moment in the name of my right honourable friend Mr. David Steel.
§ With that brief summary, I venture to suggest that the case for the first part of this Motion is really quite overwhelming. The arguments really are difficult to rebut. The case is very simple: the present Section 2 is absurdly wide. It is ambiguous. It places the Attorney-General in an impossible position, and it brings our legal system into disrepute.
§ I turn briefly therefore to the other part of the Motion, the other side of the coin: the proposition (which again I think your Lordships may find it not easy to dispute) that in what we like to think is a democratic society the public have a right, if they choose to exercise it, to participate in the process of decision-making. That they can do only if they are provided with the raw material, and that means, in fact, the essential information that is needed to enable them to discuss intelligently and sensibly policy matters, not only after the policy is announced, when it is very often too late, but while the policy is in the process of being formed.
§ May I give your Lordships a few examples of the kind of documents that ought to be available to the public but which, under our secretive society, are not? There are the technical background papers to new road schemes; for example, traffic flow forecasts. There are environmental impact studies, such as the reports of the Air Pollution Inspectorate. There is non-security information about what goes on inside prisons; for example, what books are available in the library for prisoners to read. There are preports on product tests, and there are valuers' reports. There is a whole series of papers, documents, surveys and studies, the release of which could do absolutely no harm to anybody but which would serve to create a better informed electorate.
I hasten to say that I am not suggesting for one moment that freedom of information or access to official information should involve any access to such matters as internal or interdepartmental memoranda;
and, indeed, the Campaign for Freedom of Information, which has been very active in the last year or two, very sensibly, your Lordships may think, made it perfectly clear in its first statement:
The campaign … will not seek the disclosure of information that would … endanger national security; impair relations between the government and other governments or organisations; adversely affect the value of sterling or the reserves; adversely affect law enforcement or criminal investigations; breach genuine commercial confidentiality; invade individual privacy, breach the confidentiality of advice, opinion or recommendation tendered for the purpose of policy-making".
§ The campaign draws a distinction of course between advice, opinion or recommendation and scientific or technical advice, or background factual information which ought to be made available.
§ Can it seriously be said that the public have not a right to documents of the type that has been indicated? Can it seriously be said, too, that the public have not a right to information held about themselves on official files, which may be wrong? It may be inaccurate. It may operate very much to their detriment. In only the last Session we passed the Data Protection Act, which gave the individual citizen a right to see his file if it was computerised. What about the vast majority of files that are not computerised—such things as, for example, school records, social security records, housing records and documents of that kind, which might materially affect the happiness and well-being of the individual citizen but might very well be wrong, and to which he has no access and is never given the chance to put right? It is no wonder that there has been a great swell of opinion in support of increasing access to official information.
§ I say at once that one must beware of one's bedfellows in this matter. There are some on the extreme Left or the extreme Right whose object is not increased access to official information but to bring government to a grinding halt. With them we want nothing to do. Perhaps I may add that I also find it a little strange to be on this occasion perhaps in danger of being in bed with the media. I say that because the media, I believe, share many of our objectives in this discussion, but sometimes their motives are not, perhaps, the motives of some of us who seek to support these proposals. It is not chance, I think, that the media are paying rather more attention to this debate this afternoon than they have paid to any of our other debates in the course of the last few weeks.
§ The last question is: how do we achieve increased access to official information? There is a case for saying, "Let us try without legislation. Let us follow up the Croham directive of 1977; let us follow up the Justice report in 1978." But one is bound to say that the Croham directive has never really been acted upon, and it may be that one is forced to the conclusion that although one might try some form of administrative action first, one is going to be obliged in the end to introduce some form of legislation. The wording of the second half of this Motion covers both eventualities. It does not specify that there must be legislation: it simply asks the Government to bring forward proposals to establish a general right of access subject to specific exemptions.
§ The last matter to which I would refer is this. It is sometimes said that constitutionally it is not appropri- 556 ate to a parliamentary democracy of our type to have freedom of information legislation. It has been said with some force by the Prime Minister. I can only say that in at least three other countries that have parliamentary democracies of our type, the Westminster type—Canada. Australia and New Zealand—there is legislation of this kind, and interestingly enough it has been brought forward on each occasion by the Conservative Party in those countries. The demand that is expressed in this Motion goes. I believe, across party lines. I hope and believe that the Liberal-SDP Alliance is in the forefront of this discussion, but it goes beyond party and there is support forthcoming from members of all parties and of none. It is a demand, first, to repeal Section 2 and replace it by something more sensible and more logical; and, secondly, to make our society more open and to make our democracy more of a reality. I beg to move.
§ Moved to resolve, That this House calls upon Her Majesty's Government to introduce legislation which will repeal Section 2 of the Official Secrets Act 1911 and replace it with a measure which would protect specified classes of information whose wrongful disclosure would cause serious national harm; and to bring forward proposals to establish a general right of access by the public to official information, subject only to specific exemptions.—(Lord Wigoder.)
§ 3.30 p.m.
§ The Minister of State, Home Office (Lord Elton)
My Lords, the matters which the noble Lord, Lord Wigoder, so clearly and persuasively has placed before the House this afternoon are of great importance and of great interest. They have, of course, been matters of great importance ever since the Official Secrets Act was passed more than 70 years ago. And they have been the subject of wide public interest for many recent years. But that does not make this debate in any way less important; although it does suggest that agreeing on a solution to the problems we are asked to look at is very far from being an easy matter.
Look, for instance, at the first thing that this Motion refers to: Section 2 of the Official Secrets Act, It is now almost exactly 14 years since the Conservative Government of the day appointed a departmental committee, chaired by the noble Lord, Lord Franks, with terms of reference,to review the operation of Section 2 of the Official Secrets Act 1911, and to make recommendations".The committee included Members of both Houses of Parliament and representatives from the media. It received a formidable volume of both written and oral evidence. In September 1972, it made an unanimous report. That report recommended that Section 2 should be replaced by a new Official Information Act which would protect a more limited range of information than that covered by the section. Noble Lords will recall that the committee proposed that only particular sorts of information should be protected. Those were information about defence or internal security, about foreign relations, about currency or reserves, about law and order, about Cabinet documents and also information entrusted in confidence to the Government by a private individual or concern.
557 There was not sufficient time for the then Conservative Government to take this forward. In 1974 they were succeeded, after an earlier coal strike, by a Labour Government. It was not until July 1978 that that Government published a White Paper containing their proposals for an Official Information Act. It is worth noting that the White Paper, which was published by a Labour Administration, was based very largely on the recommendations of the Franks Committee. But time ran out on that Government. My own party took over Government from the party opposite in 1979.
My noble and learned friend the Lord Chancellor introduced, as the noble Lord, Lord Wigoder, reminded us, a Protection of Official Information Bill into your Lordships' House on 5th November of that year. That Bill would have repealed Section 2 of the 1911 Act and replaced it by other measures. From that alone, it must be clear to your Lordships that we are not satisfied with Section 2 and that we should like to see something else in its place. The form we would like that something else to take can be seen in that Bill. Once again, the Bill, like the White Paper, was broadly based on the recommendation set out in the Franks Report. But it did include some of the improvements on the Franks proposals that were suggested by the White Paper of the other party. It was, I believe, a good Bill. It would have effected notable improvements.
A good many of the difficulties which recent critics have identified in the operation of Section 2 would have been avoided if it had become law. Unfortunately, however, although your Lordships gave the Bill a Second Reading, your speeches revealed a good deal of hostility to its contents. I would not describe the debate in exactly the terms chosen by the noble Lord, Lord Wigoder, but it was clear that it did not have too many friends. That hostility was echoed by a number of interests outside this House and it rapidly became clear that in a number of important areas there was no agreement—and no prospect of agreement—in which the Government could share about what ought to be in it. In the end the Government had to draw the sad but unavoidable conclusion that we could make no further progress, and we withdrew the Bill.
It is a Bill, nonetheless, that the first half of the noble Lord's Motion now demands. That is why I thought I should remind your Lordships at the outset that the last one resulted from work by both governing parties and that it perished for lack of agreement. There was of course no lack of agreement that some official information does have to be protected. The Motion does not suggest (and I doubt very much whether any of your Lordships will suggest) that every scrap of official information should be available to all and sundry. You could not run a business like that. You could not run a bank, or a firm of lawyers or a doctor's practice without keeping some items of information strictly to yourself. So we are not therefore concerned only with matters of military security.
But we must not forget security. The military security of the state, our relations with other countries, do concern every one of us because every one of us stands to suffer very severely if these matters are prejudiced. And I do not have in mind only the sort of 558 breach that could lead directly to the defeat of our forces in war or to the undermining of our relations with other countries. Lesser breaches can affect very closely our ability to bargain with other nations and secure the best terms for our people in a number of matters. We are not therefore striking a simple balance between the interest of the individual, on the one hand, and the interest of the state on the other. Those interests are bound up together. Government, as the executive arm of the state, have a duty to protect the interests of all of us, and each of us has a right to expect that they will.
The second part of the Motion asks not for "legislation"—and Lord Wigoder drew attention to this in his concluding remarks—but for "proposals". It is in a way complementary to the first part. The first seeks by legislative means to set a narrow fence round information that must be held only by Government and those appointed by Government. The second seeks to improve public access to all other information. Again, convention, and the clock, prevent me from responding immediately to the detail of what the noble Lord has proposed. I shall return to that when I reply at the end of this debate, although the accumulation of detail by that time will mean that, as usual, part of our exchanges will be by correspondence.
I think the most useful material I can provide at the beginning of the debate is a reminder of our general approach as it is at present. This was set out by the Prime Minister in another place only last month. She said that we have a clear policy to make available as much information as possible while preserving the confidentiality essential to the effective working of Government. Ministers in charge of departments were asked to give this their close personal attention when we took office in 1979. Those were the Prime Minister's instructions. They do not sound like the words of a Government obsessed with secrecy. But if there are any remaining doubts, it is worth looking at the result of this approach, and in considering what we do next we ought in any case to consider the level of access the public now has to information.
To start with you only have to look at the reports of the proceedings of this House and its committees and of the other place and its committees—or even the daily newspapers—to see that there is a vast quantity of detailed information available about our activities and policies of Government. I am not talking about trivia or propaganda. I am talking about solid information which is the essential ingredient for informed discussion. But your Lordships will want, I do not doubt, concrete examples of specific Government initiatives and decisions that make the difference between what we do now and what was done by Governments less than 10 years ago. Let me take one of my own areas of responsibility for a start. And what I shall say does not seem to me to fall short of the pledge that we gave in our 1970 election manifesto (to which the noble Lord referred), nor does it seem to me to fail to match up to the expectations raised by my noble and learned friend Lord Rawlinson in the evidence which he quoted.
At the end of 1980 my noble friend Lord Whitelaw—Leader, as he now is, of this House—decided to open up one of our most 559 celebrated and crowded prisons, Her Majesty's Prison at Strangeways in Manchester, to the television cameras. The television cameras did not I think scan the title of the books in the prison library but it was a new and, for the prison service, a dramatic departure that has been followed by greater openness to the media ever since and has generated a reforming pressure of which, as the Minister concerned, I am acutely aware every day of my working life.
And that was not just an isolated flourish. In 1983 we appointed a committee—the Control Review Committee—to look at the way in which we deal with our most difficult and disruptive long-term prisoners, a typical subject for an internal inquiry. We appointed it because we thought we were not doing the job well. The report contains an extremely frank discussion of how past policies had failed and how our present efforts were not much better. It was a sensitive report, full of professional and technical information which exposed much that urgently needs to be put right. Not exactly a gift to the Home Office PR Department, but we published it in July 1984.
Since 1979 we have appointed an Inspector of Prisons who can be removed only on a resolution of both Houses of Parliament and we publish every report he makes to the Secretary of State no matter how critical it is of the department or of Government. That was a new departure—just as it was a new departure for the Department of Education and Science to start publishing all the reports of formal inspections by Her Majesty's Inspectorate of Schools and to publish also their annual survey of the effects on education of local education authorities' expenditure policies.
I could go on, my Lords, to refer to the Board of Inland Revenue making available for publication evidence to the Keith Committee covering their enforcement powers, their powers of entry and inspection and, more important, their prosecution policy, tax defaulters and the black economy. But I have said enough to remind your Lordships of the change in the flavour of these things since 1979.
I will only mention in addition, therefore, the programme run by BBC radio in the last few years about the Civil Service, in which serving civil servants talked freely to Mr. Hugo Young about current problems and issues in a series which I believe was called, "No, Minister". It was generally agreed that, by letting the microphones in, we had opened up Whitehall in ways which had never previously been known.
I do not therefore argue against a flow of information from Government to public. Far from it. That is not the question. The real question is, rather: is the present level and type of access to information yet adequate, or can we put something better in its place? I look forward with interest to hearing ideas that may come forward on this question during the debate, but I think I should just make the position quite clear on the question of who takes the formal decision on what information should be released.
The noble Lord, Lord Wigoder, has mentioned that in some other countries these decisions have been given to the courts or to an information commissioner not unlike our own ombudsman, or to some kind of 560 tribunal. My Lords, courts, tribunals and ombudsmen of various kinds have very valuable parts to play. But would it really be right to give this area of decision-making to them? Our view is that it would not be right. Under our constitution, Ministers are accountable to Parliament for the work of their departments, and that includes the provision of information, If the noble Lord wants to see the material of decision-making displayed for the public to use, let him look at the reports of proceedings of the departmental select committees of another place, and there he will find it. The issues at stake are essentially political and, in our view, the right place for Ministers to answer for their decisions in the essentially political area of information is in the political arena of the country, which is Parliament.
That is the background against which I believe we should look at any proposals for improving access to information. If we can improve access to information in a sensible way, without breaching that principle, then we are ready to listen to ideas. But let us not underrate the very wide access we already have, let us not discount its parliamentary safeguards and let us not forget that any more formal arrangements are bound to add both to our bureaucracy and to the cost to the taxpayer.
Your Lordships will realise from what I have said that both our recent experience in these matters and a proper caution about what is actually achieveable mean that I do not offer a prospect of definitive action in this field. I must also emphasise again, so far as the second part of the Motion is concerned, that any proposals to give a general statutory right of access to Government information are unacceptable to us in principle; and the noble Lord has accepted that. Nonetheless, the Motion contains so much with which we have sympathy that I have no intention of asking your Lordships to resist it. I shall, instead, listen with very close attention to any new ideas on how the present situation might be improved.
§ 3.44 p.m.
§ Lord Elwyn-Jones
My Lords, I observe from The Times TV programmes today, in relation to this debate, that it said:Lord Wigoder (Liberal) opens for the Alliance and Lord Elwyn-Jones leads for the Government".I can only regard that announcement as premature and dependent upon the outcome of the next general election, which is perhaps a little way off.
This debate is an important one, and it starts from certain acceptances, I think, of common ground. I think it is no secret, at any rate, that Section 2 of the Official Secrets Act, which has been so well dissected by the noble Lord, Lord Wigoder, is by now almost totally discredited. Way back in 1972 the Franks Report said. "Section 2 is a mess." It is; and Atttorney-Generals who have had the misfortune of trying to give effect to it have found themselves in a mess, if I may venture to say so, sometimes in consequence of its condition. Few will quarrel with the statement of the noble and learned Lord, Lord Scarman, calling for the repeal of the Official Secrets Act, Section 2, lock, stock and barrel and for its replacement by a more narrowly-defined protective measure and a Freedom of Information Act. With that I broadly agree.
561 The not so well disposed may call this, from my point of view and my record, a somewhat belated conversion. It is indeed the case, as the noble Lord, Lord Wigoder, has indicated, that politicians in all countries, when they are in office and in power, are reluctant to concede that, apart from good reason, Government information is, and should be, public information. As Mr. Floyd Abrams, the American authority in this field, pointed out in an engaging Grenada lecture last year, Thomas Jefferson wrote that if he had to choose between a government without newspapers and newspapers without a government, he would unhesitatingly prefer the latter. But the Thomas Jefferson who wrote that was not yet in office; and when he was then he, as President, wrote:A few state seditious libel prosecutions of some of the most prominent offenders in the press would have a wholesome effect in restoring the integrity of the press".So there is the change that follows office, and its abandonment. Lord Acton, after all, warned us a long time ago that power tends to corrupt. However, it is not always a condition which remains, and sometimes it is even avoided by the galaxy and joy of power.
So far as my own involvement in these matters is concerned, I take comfort in referring to the Green Paper published by the Labour Government in March 1979, which, long before the noble and learned Lord, Lord Scarman, gave his great weight to the campaign for the repeal of Section 2, recognised that the catch-all effect of Section 2 is no longer right. It announced:the Government intends that it should be replaced by provisions which would restrict criminal sanctions for unauthorised disclosure or communications to a strictly limited range of information".That was announced at that time, and it would have been our intention. The paper added: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. The Government sees reform of Section 2 as an essential step in creating the climate in which greater openness can prevail".The opportunity of giving effect to the proposals in its Green Paper was denied to the Labour Government, and as we have been told it was a Conservative government that introduced the Protection of Information Bill in 1979 which proved to be an ill-fated attempt to deal with Section 2.
Clause 1 of that Bill set out the protected information, disclosure of which attracted the criminal sanctions set out in the Bill, and it did so in six categories. Category (a) referred 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 its citizens. But that test was to be conclusively decided not by evidence to that effect to be given in court, but simply by a certificate—the "say-so" of a Minister.
That certificate, as indeed the Bill said, was to be "conclusive evidence of that fact." The result of course, as I ventured to say in the debate that we had upon that Bill, would have been that the main issue in a trial would, in effect, be decided by a Minister's certificate before the trial ever began. Not surprisingly, the Bill received very rough treatment in the House and went into the sand.
562 I believe that the time has now come for another legislative effort to be made, and I regard this Motion as a very timely one indeed because I fear it is the case that there is a general lack of public confidence in the present law and in present arrangements regarding the public's access to official information. That lack of confidence is very serious and is something to which the Government should pay most careful heed.
What we who support this Motion—and I am very delighted to hear from the noble Lord the Minister that it is not the Government's intention to oppose it—are looking for and thinking about is already in existence, and is indeed practised in several Commonwealth countries whose democratic traditions came from us. I have in mind particularly Canada, Australia, New Zealand and then of course the United States of America. We do not need to follow those precedents slavishly but they are a good pointer and their experience is, I believe, reassuring.
They have not disregarded the need for the relevant law to be such as to prevent the likelihood of causing serious injury to the interests of the nation or endangering the safety of its citizens. For example, the United States Freedom of Information Act exempts from disclosure, among other materials, classified material based upon defence or foreign policy needs, trade secrets and confidential commercial and financial information, private personnel and medical files and law enforcement investigatory records. Those areas of official documents are protected.
But the value of the American experience has proved to be great. Speaking of the impact of the American Freedom of Information Act, Mr. Floyd Abrams who, as I said, is an authority in this field, said this:How could one object to an Act which resulted in news articles revealing, among other things, the My Lai massacre in Vietnam, the FBI's harassment of domestic political groups and the CIA's illegal surveillance on American college campuses?He cited in his speech a number of examples of the kind of information revealed by the Freedom of Information Act. As illustrations, he mentioned documents which by virtue of the operation of the Act had to be released; documents released to the Governor of Utah on the radioactive fall-out from atomic bomb testing in a neighbouring state, and others which showed that governmental officials knew of the health hazards, including cancer, but publicly insisted that there was no danger. As a result, Governor Scott Matheson was able to prepare testimony on federal compensation for victims of the testing.
Then an even more remarkable example was in the documents which the FBI had to release by virtue of the operation of the Act and which showed that J. Edgar Hoover, the FBI's director, had authorised the sending of a fraudulent letter by a fictitious person to a Hollywood gossip magazine, stating that the person had been at a rally where Jane Fonda and a Black Panther led a chant proposing to kill the then President, Richard Nixon. The material was used by Jane Fonda in litigation which she started against the FBI and which, not surprisingly, was ultimately settled out of court with the FBI agreeing to cease such activities in the future. It is true that we have no CIA 563 and no FBI in this country; but are we certain that there are no skeletons in equivalent cupboards in this country?
As I have said, we need to restore public confidence in Government. We should not need to rely on leaks to enable the public to be better informed about what the Government are doing. There has been a good deal of leakage. The fact of that leakage is in itself significant. There is a need for the information, and lack of confidence is contributing to activities of that kind.
A question has already arisen in our discussion as to whether the situation can be remedied by voluntary action by the Government, in opening the doors more readily to the cabinets of information. Without becoming too party-motivated in this debate, I venture to think that a great deal more can be done. Certainly in the later period of its office, the Labour Government greatly widened the avenues of information, and I think it is the case that there has been a certain amount of widening this time, too, particularly through the active work of Select Committees in the House of Commons and indeed in this House. That has released a great deal of information which previously would have been withheld. So I am not painting a totally black and negative picture; but I think I am not exaggerating when I say that the public is extremely unhappy about the lack of confidence between the Government and the public and the failure to fulfil open government in any real sense.
Therefore, my conclusion—and I am not saying it is an easy task, as experience has shown—is as follows. Legislation is probably necessary, and if we look to other countries with similar histories, similar constitutions and similar traditions to ours which have tried legislation and introduced Freedom of Information Bills, they have proved very well worthwhile; and I venture to think that at the end of the day that will be necessary in this country as well.
§ 3.59 p.m.
§ Lord Denning
My Lords, I am sure that your Lordships will welcome the almost unanimous view on all sides of this House that Section 2 should be repealed; that it should be replaced by some narrower and clearer definition; and that, in the long run, there should be a considerable increase in the amount of information available to the public.
For myself, I should like to start with Section 2 of the 1911 Act. I welcome the verdit of the jury in the Clive Ponting case. They disregarded, as far as I can see, the direction of the judge and in spite of his direction they unanimously found Clive Ponting not guilty. There is a precedent in this regard. That verdict should lead to a change in the law, just as 200 years ago, when freedom of speech was imperilled, it was the verdict of a jury which compelled a change in the law. It will take me only a minute or two to remind you of the case.
Junius wrote in the London Evening Post words which were said to be a seditious libel on King George III. He wrote that the King did not know the language of truth until he heard it in the complaints of his subjects. The printers and publishers were charged with seditious libel—criticising the Government of the day, if you please. The case was tried before Lord 564 Mansfield and a jury, and for once Lord Mansfield got his law wrong. He said that the question of libel or no libel was for the judge himself to decide; all the jury had to decide was whether or not the words were printed and published. That was virtually a direction to them to find the printers and publishers guilty.
The jury went out for five and a half hours, so long that Lord Mansfield went back to his home in Bloomsbury Square to await the verdict. Then, after five and a half hours, in defiance of that great judge, the jury found the printers and publishers not guilty; and it is said that the "hoorays" and "hurrahs" reverberated across the metropolis until they reached the ears of Lord Mansfield himself in Bloomsbury Square. Well, my Lords, if you have read your newspapers, you will have seen that after the verdict of "not guilty" in the Ponting case there were "hoorays" and "hurrahs" from those who were present in court.
I give the illustration of that case because that does not mean that the jury thought that Clive Ponting was a first-rate man doing what was right; they meant only that it had not been proved that he had been guilty of a criminal offence. There we come to the rub of the matter. That is where Section 2 is completely wrong. Every piece of legislation which provides for a criminal offence with penalties should be clear and distinct so that every man shall be able to know what he can or cannot do.
Perhaps it is not necessary to have such an obvious statement but in 1962, in the case of Shaw, Lord Reid said:It has always been thought to be of primary importance that our law, and particularly our criminal law, should be certain; that a man should be able to know what conduct is and what is not criminal, particularly when heavy penalties are involved".Section 2 is so wide that it covers every little communication by a civil servant outside of official information and makes him guilty. It is so ambiguous that no one can say what this means or what that means. Indeed, it is so uncertain in its operation that you do not know whether something is a criminal offence. The Attorney-General is the one who decides from these wide words whether you are guilty of a criminal offence. That is the width and ambiguity of Section 2.
In the Ponting case, much discussion took place around the words,in the interests of the state".If Clive Ponting did what he did out of a duty "in the interests of the state", he was not guilty. If he did not do it "in the interests of the state", he was guilty. It is not reported generally but from the reports of The Times the judge seems to have said that "in the interests of the state" means in the interests of the Government of the day. I would repudiate that suggestion altogether and quote from the Chandler case, which was the only case upon the matter, in 1964 Appeal Cases, in which Lord Reid said:'State' is not an easy word. It does not mean 'the Government' or 'the executive'. Perhaps 'the country' or 'the Realm' are as good as anyone can find. I would be prepared to accept 'the organised community' as being as near a definition as one can get".Lord Devlin said:I agree that in an appropriate context 'the security, safety and interests of the state' might mean simply the public or national safety and interests but in this statute it is used to describe the organs of government of the country".565 Those words, as I read them, do not warrant the summing up of the judge in this case and, if I may say so, the words "in the interests of the state" still mean what the ordinary person would mean by them—the interests of the country or the Realm; and on that point, every individual can have a different opinion of his own. Every jury can have a different opinion of his own. But it is so uncertain and so ambiguous that you do not know where you stand. That is the vice of this Section 2. It is completely uncertain and ambiguous. No one can tell where he stands or what he can or cannot do. That is why it should be repealed.
But let me also say a few words about the position of the Attorney-General. What an embarrassing position for him. What is he to go by? The Franks Committee—perhaps I may commend the report of that committee; it was absolutely first class, by first-class people—said this about the role of the Attorney-General in this matter:The essence of it is that he draws upon his political experience and is able to obtain the views of the responsible Minister on the national interest for the purpose of exercising more efficiently his impartial law enforcement role. He is not influenced by party considerations in the exercise of this role".So he can go to the responsible Minister to see what is or is not in the national interest. What a position to place the Attorney-General in! He is in a most invidious position. He must be independent of politics; independent of any party considerations; and yet he is to determine whether to prosecute or not in the national interests.
The Attorney-General is given an almost impossible task by Section 2. I would agree with what the noble and learned Lord, Lord Scarman, has said: it is high time that Section 2 was repealed. Indeed, I am not sure whether after the Ponting case it is not a dead letter already. It is the last nail in the coffin of Section 2. But repeal by itself is not enough.
We urgently need a clear, defined Official Secrets Act. I would be with almost anyone in a responsible position in saying that we must have confidence maintained throughout our Civil Service. Confidence must be maintained on those essential matters. It must of course be maintained on national security, and also on many other affairs which affect the government of the land. Confidence in the maintenance of security is important throughout our Civil Service and throughout our businesses, and so on. Everyone in business will know that. It is most important to have confidence in the security of all proper communications, and therefore we should replace the 1911 Act by new provisions on the lines so well recommended by the Franks Committee.
There is a further point; the last one and perhaps the most important of all. What about some specific provisions for more open government, for more communications to be made available to the media and the press? In the climate of today I believe that all of us would be in favour of that, provided that vital interests are not thereby left imperilled.
It has been suggested by some that the courts could decide whether or not information should be released. The courts could not do such a job as that. As the noble Lord the Minister, Lord Elton, has said, in a way it is for the Minister responsible to decide this matter, 566 realising the importance of open government but also realising the importance of preserving confidentiality. Then if the Minister goes wrong, he can answer questions in Parliament. So we should repeal Section 2 and replace it by something much more definite and certain in our criminal law, and somehow allow for more open government.
§ 4.12 p.m.
§ Lord Maude of Stratford-upon-Avon
My Lords, I realise that it might be considered rather bad form for a Member of your Lordships' House, and especially a rather junior one, to start his speech by enumerating what he considers to be his own qualifications for speaking on a subject as controversial as this. If I briefly try to do so, it is only to show that I am able to take a fairly objective and impartial view, having been not only on both sides but in the middle as well.
I have been a practising journalist of one kind or another for 50 years, including some years as a newspaper editor. I have been a parliamentarian for 30 years, and for a couple of years a Minister, during which time I had the responsibility for looking into one departmental leak. My years as a Minister were spent with the remit which was laughingly described as the co-ordination of Government information services. During all those years I was steadily accused by the media and by the Opposition of being there to stifle the release of information, to prevent the press and the public finding things out.
On the contrary, I can say with my hand on my heart that I spent most of those two years trying to persuade Ministers and senior civil servants to reveal more and to explain more than they were ever apparently willing to do. In that I was loyally and willingly supported by the heads of the information services in every Government department because they recognised, as I did, that Governments suffer far more often from being too secretive and from failing to explain what they are doing at the time than they do from excessive communicativeness.
I do not dissent for a moment from what has been said by the noble Lord, Lord Wigoder, and the noble and learned Lord, Lord Denning, about Section 2 of the Official Secrets Act. We all know that it is a mess. The only thing which can be said in favour of it, I suppose, is that it may be better to have a bad law that is unenforceable than a reasonably bad law with which nobody is ever satisfied. But one point I must make to the Government is that when they come to replace that Act, as they must do, then whatever they do, and however narrowly they draw the new Act, they will never, ever, satisfy all the media. This is in the nature of things. They must just grit their teeth and face the fact. Least of all will they ever satisfy those who nowadays call themselves investigative journalists, many of whom apparently proceed on the principle that they have a right to know everything and that any means short of murder are in order to enable them to find out.
There have been so many cases of leaks to newspapers over the past 10 years or so, and what has been happening is, I am sorry to say, in part due to a very substantial deterioration in journalistic ethics. Even more remarkable is the fact that this deterioration has taken place most markedly among those 567 newspapers which used to be regarded as the more responsible "heavies". I believe that I can honestly say that when I set out as a young journalist some 50 years ago no responsible editor, night editor or news editor would ever have dreamt of publishing a confidential Government document which he knew to have been obtained by theft or by a breach of confidence on the part of an official servant. He would have regarded that as unethical, immoral and, to use an old-fashioned word, unpatriotic.
Nowadays, if a newspaper—the Guardian, the Observer, or even The Times—can get hold of an official document, they publish it on the front page, under banner headlines, in triumph, as if they had succeeded in cocking a snook at the Government, however unimportant the contents of the document may be. If it is secret and if they have it, it is regarded as a triumph.
In my view this practice has quite the opposite effect to that which the editors no doubt believe it has. It does not bring us any nearer to more freedom of information. It merely makes the Government, Government departments, Ministers and civil servants more secretive and more costive. What the Pontings and the others are doing is not any great demonstration in favour of the right of the public to know or in favour of freedom of information; it is quite simply a breach of professional ethics and a breach of confidence in which the newspapers are not only conniving but which they are actively encouraging.
The fact of the matter is that the more this kind of thing happens, so far from freedom of information being encouraged or furthered, secrecy becomes more ingrained and more likely to be the rule. If no official document can be secure, much less will be put on paper and distribution lists will be rigidly pruned on a strict need-to-know basis. If no ministerial committee can be secure, and if no conference between a Minister and his advisers can be secure, fewer of those mettings will take place and fewer matters will be discussed in the way they ought to be discussed if proper decisions are to be arrived at. Decision making will be pushed further and further back into fewer hands, and into smaller smoke-filled rooms, with less being available even to Members of Parliament.
So this matter requires very careful handling by the Government. They should not give way to some of the wilder cries for freedom of information with which they are no doubt now over-familiar. The Government must now take a deep breath and, possibly after prolonged consultation, reach a decision about what is to replace Section 2 of the Official Secrets Act, knowing that it will not be universally popular or universally acceptable. The Government must also say that this is the last chance to do it. We cannot go on every few years having an attempt to deal with this problem which proves to be unacceptable either to the media or to Parliament and then let matters lapse for another four or five years. The Government have to get the maximum of agreement that they can between all the interested parties. They must then put it down on paper—whether a Green Paper, a White Paper or straight into the form of a Bill—and put it before Parliament, making it quite clear that if this cannot be carried by Parliament the 568 situation will just be left as it is and people must lump it. I see no alternative to this that would not lead to chaos.
I should like to turn for a moment to the question of freedom of information. This is always a popular cry. It is always heralded by the announcement that the public, people at large, have a right to know this, that and the other, if not almost everything. I may be a crusted old high Tory but I always become rather suspicious when people talk loudly about rights and too little about duties. I believe that in this case the right way to approach this very delicate problem is to concentrate much more on the duty of governments, Ministers, and Government departments to inform than on the right of the individual to find out. Despite my puny efforts, and those of some of my successors, governments are still far too costive with information. In many cases local authorities are even worse, as are other public statutory bodies. Above all—and this is far from being in their own interests—they are far too unwilling to explain what they are doing, or trying to do, before a flaming row breaks out in the country. There needs to be much more intelligent explanation and they would then find their heads of information in each department only too willing to advise and cooperate in this respect. That would save a great deal of trouble for the Government and avoid much alarm and despondency among the public.
I would add—and I hesitate to say this having been up for some time—that if Parliament were doing its job rather better, governments would not find it nearly so easy to get away with unnecessary secretiveness. Far too many parliamentarians are prone to put down Questions as a matter of form and when they get an unsatisfactory Answer they write to the constituent and leave it at that; whereas if the Answer is unsatisfactory they ought to go on hammering until they get the information that they think the constitutent has a right to have.
Apart from that, I believe that to approach this matter from the angle that the individual has a right to know certain things, with specified exceptions, is the wrong way to go about it. The Government ought to lay down categorically what officials, Ministers and Government departments must tell the public. Let us have clearly established a duty to inform, and let us make that as wide ranging as we can. Then let us have a code of practice which will perhaps go wider than that. But I believe that anything which tries to hide behind reservations with phrases like "the national interest", "public interest" and "national security" are always going to lead to more trouble than they can ever do good. There is no general right to information. There cannot be. Nobody could run a government, a business, or anything, if everyone had a right to know everything that went on. But there is no reason why the strictest rules should not be laid down and enforced as to certain information which Ministers, officials and Government departments have no right to try to conceal, and that they have a duty to make available to those who ask for it, or even to publish without being asked, information which common sense dictates should be widely known. I believe that that is the right way to go about it and that the other way is wrong.
A general right of freedom of information for the public on almost any subject, subject to reservations, 569 would cause enormous bureaucratic confusion and would lead to an enormous waste of time and correspondence. It would probably need the employment of a great many more public servants. Therefore, the Government must deal with the matter this way. I believe that they could go far in allaying public disquiet. They could do much to make their policies more easily understood. Obviously there will always be matters which have to be kept secret. The thing to do is get as wide an agreement as possible on what those matters are and then ensure that the widest possible frankness is used in official circles when informing the public on important matters.
§ 4.28 p.m.
§ Lord Hutchinson of Lullington
My Lords, my reaction to my noble friend's Motion can be summarised in four words: "Here we go again!" The noble Lord, Lord Maude, who has just spoken, referred to the Government holding further "prolonged consultation". Since the Chandler case over 20 years ago we have had the Radcliffe, the Younger, the Fulton and the Franks reports. We have had the White Paper of 1978 and the Green Paper of 1979. We have had the ill-starred Protection of Official Information Bill; and we have had the Croham directives. We have had Mr. Freud's Bill; and now we have Mr. Steel's Bill. We have had the condemnation by senior judges, senior civil servants, politicians, lawyers and the victims of Section 2. There is nothing more to say about Section 2; and yet this Government, as did the previous Government, continue to invoke Section 2 of the Act. It did not sound to me, in listening to the noble Lord the Minister, that he in any shape or form looks with disfavour upon that section still being in existence.
To have prosecuted Mr. Ponting under this Act was one of the most extraordinary decisions that has been taken in recent years. Win or lose, the Government were clearly on a hiding to nothing. Having of course fatally used the criminal law against Miss Tisdall, where there was no danger to national security, not to use it against Ponting would have appeared, I suppose, as though the Law Officers were trying to save Ministers from embarrassment—an example of the knock-on effect of an originally disastrous decision.
But the Labour Government launched similar prosecutions, too. It was a Labour Attorney-General who used Sections 1 and 2 against two young journalists of good character and an ex-soldier from Cyprus in the ABC case. It was that Attorney-General who was told by the judge in that trial that the charges under Section I were oppressive, and whose case collapsed after five highly expensive weeks in court because the defence painstakingly proved that every item in the possession of those journalists, allegedly so secret that its communication would have undermined the security of the state, was in fact culled from public sources—including, if I may say so, the existence of GCHQ at Cheltenham. It was that learned Attorney-General who instituted in that case, unbeknown to the defence, the secret vetting of the jury. I must say that it was with some degree of cynical amusement that I watched the protestations of the Labour Front Bench in another place in the Ponting debate.
570 All these cases were in a sense political prosecutions in that they involved the disclosure of information through breaches of trust which would embarrass the Government in power. So long as the law affecting Government information is based solely on the concept of administrative secrecy, on the prohibition of disclosure and on no other principle at all, so long will there continue to be this recurring resort to the criminal law and so long will the common sense and broad understanding of juries acquit the accused.
The time therefore has come—has it not?—to approach the whole problem from another direction and to lift it onto a higher level of principle. The protection of national security and the accountability of the security services necessarily involve matters of the highest principle. They invoke no less than the protection of the fundamental rights and freedoms of the individual citizen and the safety of the state. They involve the individual's right of free speech.
The noble and learned Lord, Lord Scarman, who certainly could not be described as a crusty old Tory, has put it like this:Section 2 is inconsistent with the modern development of our law and with the discernible new trends in the law's protection of the fundamental rights and freedoms necessary to the maintenance of a free democratic society".What we are discussing in fact is the right of the citizen to the information which is necessary for him or her to have to exercise his or her democratic rights. It is the right to know—to know the basis on which decisions which affect the common good are made. This right to know—this need to know—is enshrined in Article 10 of the European Convention on Human Rights. Alas, as your Lordships will know, one quarter of the cases which have been found proved against member states of the European Community have in fact come from the United Kingdom.
That right to know is enshrined in Article 10, and yet, as the noble and learned Lord, Lord Scarman, pointed out, there exists at present no general principle in English law that is enforceable in the courts enshrining that right. Far from there being such a right, the disclosure of information in this country is a matter simply of executive policy—of Government or local government discretion. The law is not a law for the protection of the individual's fundamental rights, but, as the 1979 Bill so revealingly made clear in its title, the protection of official information. It is simply a law which manifests in legal form the concept of administrative secrecy.
The approach therefore to the repeal of Section 2, and indeed to the repeal of the whole of the Official Secrets Act, which has been so profoundly demanded by the noble and learned Lord, Lord Scarman, must be, first, to lay down the principle of the citizen's right to know, and then to spell out the necessary limitations to be put on that right. We must start by establishing that basic right and making it enforceable in the courts, and that means the drafting of a form of Freedom of Information Bill. That should not involve any great difficulty, because in Mr. Steel's Bill we have an excellent beginning; and, secondly, because, as has already been pointed out, other parts of the Commonwealth—those parts to which we have bequeathed a love and respect for our common law—already have legislation of this kind.
571 Information technology is vastly increasing the storage of information and also undermining relentlessly attempts at excessive secrecy. Satellites now transcend national jurisdictions. By making Governments more accountable to the citizen and officials more accountable to Ministers, we strengthen democracy, Governments win greater confidence and the two-way passage of information between Government and citizen will lead possibly to better governmental decisions. Leaking and whistle-blowing will then cease in the land. It is not, if I may say so with the greatest respect to the noble Lord, Lord Maude, media morals which cause leaking and whistle-blowing. It is excessive secrecy.
I sincerely hope now that the Government will think on a bigger scale, on a scale quite different from that indicated by the noble Lord the Minister in his speech—these little matters of television cameras in Winson Green Prison, and so on. We talk of the flow of information. This is a trickle which can hardly be seen on the mountainside of secrecy. I sincerely hope that the Government will think on a bigger scale, in a non-partisan way, free from dogma.
There is now a developing consensus on how to proceed. To the noble Earl, Lord Gowrie, consensus means thought without intellectual force or vigour. But to formulate policy based on the deeply held and thought-through beliefs and principles of others, as well as on one's own, is, I would suggest, a far more difficult intellectual exercise than the stubborn and facile confrontation of conviction politics.
Recently an eminent Australian judge, the President of the Court of Appeal of New South Wales, Justice Kirby, who gave the second of the 1984 Granada lectures, speaking to a British audience, said—and I commend it to your Lordships:Being an Anglophile, I would give you many things. But if you would accept one only, I would give you freedom of information. That wave is coming. It is borne forward by technology and by example. It renews accountable democracy. It stimulates responsible freedom in the media. It obviates the plague of leaks that spring up in a world of too many secrets. It encourages a questioning and self-confident citizenry. It deserves your belated attention".
§ 4.40 p.m.
§ Lord Hatch of Lusby
My Lords, the Official Secrets Act was passed to protect national security. The trial of Clive Ponting at the Old Bailey reveals how easy it is for Section 2 of the Act to be used for the protection of political reputations. This was a political trial. I have been told that the revelations of the Ponting trial concern only the House of Commons. Not so. They concern Parliament. Since January 1983, Ministers in this House have constantly misled and deceived the House in answering questions that I have put to them. I do not cast any aspersions on any of them personally. Indeed, I may say that any individual I shall mention in my speech I have given notice to beforehand.
I do not cast aspersions on them personally. They have no doubt done what they have been told to do. I accept that probably they did not know the facts. These deceptions are the responsibility of the Government and under our system they are finally the responsibility of the Prime Minister.
572 In the time at my disposal I have only the opportunity to make a small selection from a constant misleading set of answers given to my questions since January 1983. On 17th January of that year, in discussing paragraph 110 of the Government White Paper on the sinking of the "Belgrano" and on the Falklands campaign, it was stated that, on 2nd May, HMS "Conqueror" detected the Argentine cruiser "General Belgrano". The Government knew at that time that that was not true. I raised that in the debate on the White Paper. It was not corrected. The noble Lord, Lord Belstead, then Minister of State at the Foreign Office, simply referred me to an answer given by Mr. Blaker in another place on 30th November 1982. That answer had already been overtaken by information and events. It was not to be until 4th April 1984, some 15 months later, that the Government were to admit that what I had suggested was true.
On 12th May of the same year, 1983, I asked a question about a statement of 1st May 1982 attributed to Mr. Pym when, as Foreign Secretary, he arrived in Washington. The statement was that Her Majesty's Government had no intention of taking further military action except to defend the exclusion zone. The noble Lord, Lord Belstead, gave me this astonishing answer:I am surprised that the noble Lord ascribes such a statement to my right honourable friend the Foreign and Commonwealth Secretary at a time when the task force was steaming towards the Falkland Islands". [Official Report, 12/5/83; col. 555.]That was a correct report. So far as I know, apart from the statement made by the noble Lord, Lord Belstead, in this House to me, it has never been queried.
I come thirdly to an Unstarred Question that I put down in this House on 13th July 1983. By this time, the noble Baroness, Lady Young, was Minister of State at the Foreign Office. I asked her, after giving her notice, 10 specific questions. If your Lordships read the debate that followed my Unstarred Question, you will see that not one of those 10 questions was answered accurately. Again, I make only a small selection from them. I asked her about the statement made by Mr. John Nott (as he then was) the then Secretary of State for Defence, on 4th May 1982. The statement was that the "Belgrano"was closing on elements of our task force".On 13th July 1983 the Government knew that this was not true. The "Belgrano" was, in fact, sailing away from the task force at the time that she was sunk and had been doing so for some 11 hours. It is quite fair that, in the middle of hostilities, a Minister may very easily make a mistake. But if a Minister makes a mistake of that kind, surely it is incumbent on him and members of the Government to correct it at the earliest possible moment.
§ Lord Hatch of Lusby
My Lords, in the same debate I asked the noble Baroness, Lady Young, to account for the statement also made by Mr. John Nott (as he then was) on 5th May 1982, when he stated that the decision to launch the torpedo was clearly one taken by the submarine commander. Earlier, the noble Lord, Lord Belstead, had answered the same question 573 to me. His answer was that the decision was taken by the Prime Minister and the War Cabinet. They cannot both be right. One must be untrue. I think that this House has a right to truthful answers.
By this time—by the time of the debate on my Unstarred Question—the 1983 general election had taken place. During the course of that general election, the Prime Minister had spoken on the BBC television programme "Nationwide." She had spoken to a Mrs. Diana Gould of Bristol. And when Mrs. Gould asked her why the order to sink the "Belgrano" was given when the cruiser was sailing away from the Falklands, the Prime Minister answered, and again I quote:But it was not sailing away from the Falklands".In June 1983, the Prime Minister knew that the "Belgrano" was sailing away from the Falkland Islands and away from the task force at the time she was sunk.
I come now to the Peruvian peace plan. I have never made any assertions that I know the truth. I have tried to find out the truth. I still do not know the truth. Questions on this subject have been answered by the noble Baroness, Lady Young, and other Government Ministers. All have consistently said, as has the Prime Minister, that Her Majesty's Government only received the first notice of the Peruvian peace plan three hours after the sinking of the "Belgrano". I do not know the truth but I do know, because I saw and heard him, that Mr. Cecil Parkinson, who was, at the time the decision on the "Belgrano" was taken, a member of the War Cabinet, stated on Panorama in 1984 that the knew all about the Peruvian peace proposals, primarily those of President Belaunde. Again, I do not know whether the Ministers, who have answered me, or Mr. Cecil Parkinson, were telling the truth. I do know that they could not all be telling the truth. If so, surely it is the right of this House to ask why Ministers or former Ministers have been deceiving both Parliament and public.
I am sorry that the noble Lord, Lord Thomas of Swynnerton, is not in his place and will not be speaking in this debate. I have alerted him to the fact that I shall be mentioning him. What many of us would like to know is what were the actions of the noble Lord, Lord Thomas of Swynnerton, in Peru at the time of the Peruvian peace proposals. He is, I believe, a fluent Spanish speaker, with the ear of the Prime Minister. We have never been told, and it is time that we were told.
I pass, finally, to a time less than a year ago. As noble Lords will know, I was asking a number of Questions. Indeed, some noble Lords may have been weary of hearing my Questions, which were aimed at trying to get at the truth of the sinking of the "Belgrano", the Peruvian peace plan, and the Falklands Campaign in general. They have now continued for two-and-a-half years. On 28th March 1984 I asked whether it was the case that HMS "Conqueror", the submarine, had been tracking the "Belgrano" for the 30 hours before the "Belgrano" was sunk. The noble Lord, Lord Trefgarne, by then an Under-Secretary of State, had changed the Government's tack. Those who have read Clive Ponting's book—I recommend it to all noble Lords, because it reads like a detective story—will know that 574 the Government had then taken a decision to adopt a different stance to those of us who were asking Questions on the "Belgrano", in particular Mr. Tam Dalyell, the Member for Linlithgow, to whom I cannot pay high enough respect as a Member of Parliament who knows what is the duty of a Member of Parliament.
§ Lord Elton
My Lords, will the noble Lord forgive me for using a little of his precious ration of time to say just this? He has the ear of the House and possibly the ear of the media. He is using it to make serious allegations about a large number of my honourable, right honourable and noble friends whom the procedures of this House forbid to defend themselves in the course of this debate; and therefore their answers will not be heard. He had an Unstarred Question on exactly the same matter on which he could have made these charges and had them rebutted. I hope that that will be noted by your Lordships and that my silence will not be taken in any sense for acquiescence in anything he has said.
§ Lord Hatch of Lusby
My Lords, may I repeat to the House and to the noble Lord the Minister that each of the individuals mentioned in my speech has been given prior notice that I would be mentioning him. I did ask an Unstarred Question, and I have quoted from the debate on it. I have pointed out to the House that on that Unstarred Question, after giving notice to the Minister that I would be asking 10 specific questions, I did not receive a straight answer to a single one of them.
I repeat that on 28th March 1984 I asked whether it was the case that the submarine HMS "Conqueror" had been tracking the "Belgrano" for 30 hours before firing a torpedo. I asked further why it had been tracking the "Belgrano" for 30 hours if the "Belgrano" was a danger to the task force, instead of sinking it when it was first sighted. The noble Lord, Lord Trefgarne, answered:The matters which the noble Lord now puts to me are generally of a confidential, security nature and cannot therefore be revealed". —[Official Report, 28/3/84; col. 226.]By reading Mr. Ponting's book you will see that the Government had decided that this was to be the new line on the Questions that we had been putting down in order to discover the truth: in other words, in the phrase commonly used, they had decided to "tough it out".
I ask your Lordships to note that my last quotation was from 28th March 1984. Seven days later, on 4th April 1984, the Prime Minister wrote to a member of the Shadow Cabinet, Mr. Denzil Davies, revealing a number of facts each of which supported my version in regard to the Questions that I had been asking over the previous two years. In a letter to Mr. Denzil Davies she added, as she was to add six months later in a letter to Mr. George Foulkes, also of the Shadow Cabinet—in that letter she revealed still more details on the specific Questions that had been asked in another place and that I had been asking here—this comment:My comments about the first contacts with the `Belgrano' group go further than we have been prepared to do hitherto".575 In other words, she was correcting the record, at last, after nearly two years. The letter continued:I have only felt able to do this now as, with the passage of time, those events have lost some of their original operational significance".I submit to your Lordships that the excuse of operational significance or national security in relation to matters which are seen to be, and have been proved to be, unclassified—stated by the naval authorities to have been unclassified—is a very feeble excuse and is simply a method of blocking embarrassing Questions. Indeed, the Prime Minister, in these two letters of April and September 1984, admitted virtually all the case we have been putting, with the exception of the Peruvian peace plan, to which I have already referred. If she wanted to fall back on the defence of national security and the protection of the armed forces two years after the conflict had finished why were not these documents, these facts, included under the heading of "Classified"?
Parliament is one of the vital pillars supporting the edifice of our democratic system. Ministers' truthfulness in rendering their accountability to Parliament is essential for its proper functioning. Here I disagree with the noble Lord, Lord Wigoder, who introduced this Motion. I believe that Judge McCowan and the Attorney-General attacked the very roots of our constitution when they identified state secrets with those of politicians who happen for the moment to be Ministers. Our constitution may be flawed—I personally do not accept the present composition of this House. But it remains invaluable to the preservation of parliamentary democracy. Our only role in this House is as Members of Parliament. The constant deception of our House over the past two-and-half-years by Ministers of the Government attacks the very foundations of parliamentary democracy. The Government then misused Section 2 of the Official Secrets Act to persecute the civil servant who exposed their deceit. They should not be allowed to do so again. This section must be repealed.
§ 4.58 p.m.
§ Lord Allen of Abbeydale
My Lords, to return to the Motion which is before the House, I fear that, like the noble Lord, Lord Maude of Stratford-upon-Avon, I must with considerable diffidence begin on a personal note. As a member of the Security Commission, I shall take care not to say anything which encroaches on the work of that body. I am conscious of the fact that I was a member of the Fulton Committee, whose report gave a considerable impetus to the public discussion of these issues, which has been going on ever since, and also of the fact that I was closely concerned with setting up the Franks Committee and indeed gave evidence at some considerable length and on more than one occasion to that distinguished body. We went to a great deal of trouble at the time, as did the Committee itself and, frankly, I have been disappointed at what little has been achieved as a result of the Committee's report. However, I know that that is not a unique fate for the report of a departmental committee, and I shall try not to let a note of bitterness come into that comment.
Reverting to the Franks Committee, I point out that 576 I find that there has even been no change to this day in the wording of those rather quaint declarations which are frequently but quite erroneously described as "signing the Official Secrets Act", notwithstanding the fact that the committee criticised them in pretty forthright terms for being both inaccurate and misleading. Personally, I have never seen the point of them anyway.
However, the serious aspect has been the failure to do anything about Section 2 itself—that catch-all, obscurely drafted and widely criticised provision. There is certainly no need for me to repeat the criticisms which have been made of it today, although I would make the point that there has been a good deal of misunderstanding about the precise extent of its cover. I was a little sorry that the noble Lord, Lord Wigoder, in the course of his admirable speech fell into the trap of suggesting that the civil servant who described the colour of his wallpaper was technically in breach of the Act, which ignores the doctrine of implied authorisation, which the Franks Committee explained.
Certainly the section is ambiguous. Whatever its precise scope may be, it is certainly far, far too wide. Although over the years there have been comparatively few prosecutions, the very existence of the section may have helped to create an aura of secrecy. One can only speculate about that. However, I feel pretty confident in asserting that the main purpose for which the section was passed—without, as we know, a discussion in either House—is no longer valid. As the records show, the prime intention was to prevent leaks by civil servants, whether or not connected with defence or national security. I cannot think that that approach can now be justified.
The Civil Service, like other organisations, must obviously have its own disciplinary sanctions to protect itself against breaches of trust; but it seems to me that to provide criminal sanctions over and above those—sanctions which it has been pointed out are not available to ICI, Shell or what have you—can be justified only where information in the possession of Crown servants must be protected in the interests of the state itself, however difficult that may be to define. Defence is the obvious example, but there are others. In the Home Office sphere, for example, police intelligence about informants which, if it came out, would mean that there would not be any police informants, or information about prisons which could be used to facilitate escapes, represents knowledge in the possession of Crown servants which has no real parallel outside.
The experience of the Franks Committee and the various subsequent attempts at legislation, of which we have heard a good deal in the debate already, show that it is not all that easy to define the groups of information which, on this approach, call for the special protection of criminal sanctions. However, although I would not despair of being able to achieve a definition, it would require general goodwill, and so far that goodwill has not been forthcoming.
There are, perhaps, two main reasons. For one thing—and the point has already been made—it is I hope not unfair to say that the media, and indeed others, on grounds that I can well understand, see 577 some risk in substituting for a vague general provision which is invoked very infrequently, the prospect of much more tightly drawn provisions which might well limit their freedom of manoeuvre.
However, secondly, and more important, protection of official secrets has become irretrievably bound up with the question of public access to Government information—the two sides of the coin, as the noble Lord, Lord Wigoder, said at the beginning of this debate. Personally, I have always felt a little doubtful whether the two march together quite as closely as all that, and even more doubtful whether the second topic is at all suitable to be dealt with in one sweeping Act of Parliament.
I have long been in favour of more public information and discussion. I must say that the use of White and Green Papers and the functioning of the PAC, the more recent Select Committees and the Croham directive, so far as the general issues are concerned, and the ombudsman and the data protection legislation, so far as individuals are concerned, and all the rest of it, have achieved quite a remarkable change from what life was like when I joined the public service. Although the noble Lord, Lord Hutchinson, rather denigrates the access of cameras to the prisons, I personally would rate that much, much higher than he does. I can imagine some of my predecessors turning in their graves at the thought of life in Strange-ways and Broadmoor being subject to quite detailed examination on the television screen.
I have no doubt that more could be done. It is probably true that Members of both Houses could do better in pressing the Government to put out yet more factual and analytical material. There is a good deal to be said for strengthening the rights of the individual, on cause shown, to have access to written records about him, provided other people's privacy is not infringed.
However, as an aside, I point out that we live in an extraordinarily secret society when the Chancellor of the Exchequer tells his own colleagues about the main instrument of the Government's economic policy only an hour or two before he announces it to the House of Commons.
Let me revert to what I was saying previously. To go further than developing the giving of public information, and to plump for a statute giving an overriding public right of access to official documents, runs, it seems to me, into great problems. Even if one excepts the types of topic excluded from public scrutiny by United States legislation, and includes in those exceptions exchanges between Ministers and civil servants and so on, to go on and give a statutory right of access to the rest, with possible recourse to judicial review in the event of dispute, seems to me, as the noble Lord the Minister said, pretty well impossible to reconcile with our tradition of ministerial responsibility to Parliament and with our concept of the role of the courts in political issues. The United States pattern may suit Australia, New Zealand and Canada, but it does not seem to me to fit here.
I would say to the noble Lord, Lord Wigoder, that, although he advances an argument that more public information should be made available to provide a basis for public discussion of policy, there is very little 578 evidence that access to information in American records has been used for that purpose.
These are complicated issues to which one can hardly do justice in a speech in the time allocated to us. The noble Lord, Lord Huchinson, began to encroach on the arguments for a Bill of Rights and the declaration of human rights. I wish I could follow him down that path but I shall content myself with saying that there are views which differ from those which he expounded so eloquently to your Lordships.
I had myself prepared rather a good peroration. But, remembering what Doctor Johnson said,If you look at what you have written and anything strikes you as particularly fine, strike it out",I struck it out. I shall end on a much more pedestrian note by summarising what I have been trying to say. I still hope that it will be possible to legislate broadly on the principles suggested by the Franks Committee. But I am bound to say that that hope is growing a bit faint, and, if the price to he paid were to be a freedom of information Act on American lines rather than developing the policy of giving information and opportunities for consultation, I would, I fear, rather remain as we are and trust the Attorney-General and the Lord Advocate of the day to see that Section 2, unsatisfactory and somewhat discredited as it is, is invoked only where the circumstances clearly call for it. Also, they should, if I may say so, feel free to consult their ministerial colleagues whenever they think it appropriate before they decide whether or not to prosecute.
One final word: I would just remind your Lordships that, despite what has been said in more than one speech today, there have been a number of prosecutions under Section 2 in recent times which have resulted in convictions.
§ 5.12 p.m.
§ Lord Hooson
My Lords, the noble Lord, Lord Allen of Abbeydale, suggested that the Attorney-General and the Law Officers could be entrusted not to use Section 2. He was virtually suggesting that it remained on the statute book. I cannot disagree more. That section is totally discredited. There is nothing to he said for it. I do not follow his argument that it should be allowed to remain. If it remains it is a temptation for it to be used. We know so often how Attorney-Generals when they are in opposition criticise Section 2 and say that there is nothing to be said for it, yet when in power they succumb to the temptation to use it.
§ Lord Allen of Abbeydale
My Lords, I did not suggest that it should stay on the statute book and not be used. I said that it should stay on the statute book for lack of any acceptable alternative and be used in appropriate cases, as it has been.
§ Lord Hooson
My Lords, I disagree with the noble Lord even more when he suggests that it should be used occasionally, because that is exactly what will happen and Attorney-Generals will succumb to temptation. When one looks at the use made of this section one cannot avoid the conclusion that it has so often been used to avoid political embarrassment. For example, when the Labour Party were in power we 579 remember the prosecution of Mr. Jonathan Aitken and his involvement with Biafra. With the Conservative Party in power we see the prosecution of Mr. Ponting. Two different sides of the political spectrum were involved. It is an open temptation, when there is a situation of political embarrassment, for the Government to resort to the use of Section 2.
I am glad to see the noble Lord, Lord Maude of Stratford-upon-Avon, in his place. In the course of his skilful defence of the status quo—because that is what his speech amounted to—he made one or two observations on which I wish to take issue. He said first that as a high Tory he was not impressed by those who emphasised their right to know. He was much more concerned with those who emphasised duty. Let me put this point to him. Has not a Member of Parliament a duty to know so that he can exercise his political judgment on the affairs of the day? Has not a responsible editor of a newspaper a duty to know? How are they to acquire the knowledge if they have not the right to know?
What we are concerned with in this Motion, and what the general debate in the country is concerned with, is the obsessive secrecy which pervades government in this country and which is entirely unnecessary—I shall give way to the noble Lord in a moment when I have dealt with his next point because this leads on to it. He also said that if we used parliamentary Question Time properly—and implied that in the other House it is not used properly—then a great deal of the information would be available.
Let me remind the noble Lord that it was the Ponting case which gave rise to the immediate debate. There was a disclosure by Ponting which was referred to at the trial and which was said not to affect national security at all which persistent questioning in the House of Commons, persistent questioning in Select Committees, had failed to reveal. That is one of the things we are concerned with. It was not that national security was involved. The fact is that we were obsessed with secrecy.
§ Lord Maude of Stratford-upon-Avon
My Lords, I am much obliged to the noble Lord. I simply do not understand what he means when he says that the editor of a newspaper has a duty to know something, and that a Member of Parliament has a duty to know something. Both of them may have a duty to try to find out, but this is a different matter from having a right to know.
§ Lord Hooson
No, my Lords; they make political judgments and they can only make sound political judgments and give political guidance on a basis of knowledge. Therefore, they not only have the duty to know; they have the right to know. The basis on which a Government make a political judgment in a vast variety and number of instances should be made public.
The late Professor Wade in his evidence to, I think, the Fulton Committee in 1971—
§ Lord Hooson
I think it was to the Fulton Committee, but it may have been to the Franks Committee. He said:The law as it now stands shows a complete failure to understand that accessibility of information about the government of the country is of vital importance in a democracy. It is so crude, and so excessively severe, that it is rendered tolerable in practice only by the Attorney-General's tight control of prosecutions. It also has the insidious effect of conditioning Ministers and civil servants to believe that unauthorised disclosure of any official information ought to be a crime. It prevents officials from letting out innocuous and desirable information because they know that they are acting criminally unless they obtain express authorisation".That particular indictment has never been improved upon, whatever anyone else has said about Section 2.
It is necessary now to change the situation. It should be dealt with in two ways. The noble and learned Lord, Lord Denning, expressed the hope that the Ponting case was the last nail in the coffin of Section 2, and he reminded me of the words of the equally great judge, Lord Devlin, in his famous Hamlyn lectures on trial by jury. He said this:Each jury is a little parliament. The jury sense is the parliamentary sense.The jury in the Ponting case was pronouncing in a parliamentary sense. It was not pronouncing so much on the law—and there is an interesting chapter in that book, Law versus the Merits—it was pronouncing on the merits of this particular provision in relation to that particular individual, and really sending out a message to Parliament that we can all understand.
The section should be repealed—in fact the whole Act should be repealed—and we should be thinking in terms of a new Act which would identify the true areas where secrecy is required and where the sanction of the criminal law is needed. The second Act should be a Freedom of Information Act based on the principle that citizens are entitled as of right to information, making exceptions to protect certain information which must remain confidential, to delay access to information, and so on.
To deal with the point that has been made, of course all kinds of relationships of confidentiality exist. There is the relationship between doctor and patient, or lawyer and client; there are business secrets, and all kinds of examples where confidentiality is of extreme importance. But do they require the sanction of criminal law? Of course they do not. The law can deal with a breach of confidentiality in those circumstances; but there is a sphere in which Government and national security are involved and where there should be secrecy supported by the sanction of the criminal law. But I believe that there is a case for a creative and positive Freedom of Information Act.
Mr. Chapman Pincher, who is anything but a Left-wing radical, said in his autobiography Inside Story in 1978:My long experience of prising information out of Whitehall has convinced me that senior civil servants are afflicted with a pathological preoccupation with secrecy which might be called `suppressomania' and seems to be incurable. Part of the joy of being at the top is being in the charmed circle of the few 'in the know' and civil servants say that this is what they miss most when they retire. Releasing any information reduces the extent to which they are exclusively in the know".It seems to me that knowledge is power, and, in a true democracy the more that knowledge is 581 disseminated, the more is power disseminated. Surely the fewer genuine secrets the better in a democracy. People are entitled to maximum knowledge of the affairs of their country within broad limits. There obviously have to be limits, and time is an important consideration in deciding when knowledge should be released. For example, citizens have a right to know what information is held on them by Government, and to check its accuracy in most situations. To my knowledge there have been many injustices that could have been put right. Why should people not have access to this information?
The suppression of information mars people's capacity to judge a Government's economic performance. For example, we may consider all the secrecy around the development of Concorde and the judgment that was eventually reached on it. Would that judgment have been reached if the facts had been properly revealed to the public? I think there is excessive leaking at present because of the obsessive secrecy. It is not because people are lacking in morals, but because the one situation produces and creates the climate for the other.
§ Lord Somers
My Lords, would the noble Lord not agree that, when he says that the people should have access, in a civilisation such as ours there are perhaps many whose interests are not ours but are those of enemies of the country, and therefore they would be free to convey such information to our enemies?
§ Lord Hooson
My Lords, I profoundly disagree with the noble Lord. I think this country is as ethical today as it ever was. We in this country are so obsessed with the need for official secrecy that the whole thing has got out of perspective. It seems to me that when other democracies—those which stem from our roots, such as Canada, Australia and New Zealand—have developed Access to Information Acts, we could follow in their train. For example, in democracies akin to our own though stemming from a different root—the United States, Scandinavia and various countries in Europe—we find that provision is made today for sharing knowledge. This has a beneficial effect. It makes for a healthier, better-informed democratic society. Why should we in this country be afraid of it?
We then have the weight of opinion of those who have looked into our practices hitherto in this country. I did not hear the entirety of the speech of the noble Lord, Lord Elton, but he seemed in the latter part of his speech to be defending the practices of the Home Office rather than defending the Official Secrets Act. That may be very well, but when one looks more deeply one finds that the Fulton Committee in 1968 concluded that the administrative process is surrounded by too much secrecy. The public interest would be better served if there were greater openness. That was followed by the Franks Committee, the Croham directive, and so on; but nothing has changed. Because of the Ponting case and its consequences we are faced with the same debate and the same arguments. It is high time that something was done.
The Prime Minister, in a reply to Mr. Des Wilson, the director of the campaign for a Freedom of Information Bill, wrote as follows: 582Under our constitution, Ministers are accountable to Parliament for the work of their departments, and that includes the provision of information. A statutory right of public access would remove this enormously important area of decision-making from Ministers and Parliament and transfer ultimate decisions to the courts. No matter how carefully the rights were defined and circumscribed, that would be the essential constitutional result".I think the noble Lord, Lord Elton, put forward a similar argument today. I profoundly disagree on constitutional grounds. I do not think that in any way it would remove the area of decision-making from Parliament: quite the contrary. The area of decision-making would still be with the Government in Parliament. There would be a right of appeal to courts in certain instances, and the court would have a duty of interpretation where there was conflict; but the right of decision-making would not be changed.
There are a great many things to think about in considering the repeal of Section 2 and what to substitute in its place. More than that, there is a good deal to think about in making available to the public and to responsible representatives of the public much more information than is available today.
§ 5.27 p.m.
§ Lord Beloff
My Lords, as someone who was born when Mr. Asquith was Prime Minister, I had a certain feeling of nostalgia in hearing the noble Lord, Lord Wigoder, suggest that one of the measures of that famous Liberal Government should be repealed. I cannot go along with him in his line of argument, but I would say that there are other measures that that Government enacted as to which, if he were to move their repeal, he would find me cordially with him.
The noble Lord gave us, as usual, a learned and lucid account of the reasons which lead him to the conclusions he has reached. He said in passing that these would be more acceptable to a party in opposition than to a party in Government, and I take it that the fact that almost the entire national membership of the Alliance Party is in the House this afternoon suggests that they at least do not expect in the near future to be corrupted by the temptations of Government.
§ Baroness Seear
My Lords, the noble Lord is apparently not aware that the total membership of the Alliance is 81.
§ Lord Beloff
My Lords, I am sure that any absentees have very powerful and pressing reasons.
The official Opposition is represented in a rather smaller proportion, perhaps because they have not yet abandoned the hope of one day forming another Government. I think that the noble Lord, Lord Wigoder, was a little unfortunate in some of his allies. This is liable to happen in our general debates, and I take in particular—though the argument is very different in relation to the second part of his Motion—the remarks of the noble Lord, Lord Hutchinson of Lullington, and in relation to the first part, the remarks of the noble Lord, Lord Hatch of Lusby. I am not referring to the language used—the language of hyperbole—by the noble Lord, Lord Hutchinson of Lullington, though one might have imagined that we were living not in a British constitutional monarchy but in some monstrous 583 totalitarian state. I am referring rather to the argument which he thought should be brought forward in favour of a Freedom of Information Bill.
That argument essentially is that there is such a thing as a human right to know, to be embodied in some declaration of such right. I would remind the noble Lord—perhaps he does not need reminding—that the first time there was such a declaration in France in 1789 it led within four years to the tyranny of Robespierre, and in 10 years to the military rule of Napoleon. It is not surprising that a more balanced political philosopher, Jeremy Bentham, said that the language of rights is nonsense on stilts. Surely, if we are to consider the question of what information we need, and what information the public needs, we ought to begin by asking: what is it that will make our government more effective, more responsible and more useful? What is it that would help to cement our society together and not look for imaginary rights of individuals which would turn out not to be the right of the ordinary citizen, who is basically uninterested in any of these concerns, but the right as the noble Lord, Lord Maude of Stratford-upon-Avon, pointed out, which might be arrogated to themselves by members of the press and others who have specific interests to pursue. I hope therefore that if we go on to consider such legislation it will be based upon a serious assessment of where, if anywhere, we are lacking, and Parliament indeed is lacking, in the material that it needs.
The point about the Official Secrets Act is that things have changed a great deal since 1911 and therefore I would agree with the noble Lord, Lord Allen of Abbeydale, for instance, that probably some review or rewording is now desirable. They have changed, as the noble Lord, Lord Maude of Stratford-upon-Avon, pointed out in respect of the press. We certainly have today as was rare, or rarer, in 1911, organs of the press who believe that the discrediting of government is a part of their function. We have also, as has been revealed in the case of Mr. Clive Ponting and other cases, a difference of view on the part of individual civil servants of the extent of their general duties to the nation which they serve and the particular duties which they have to the Minister whose confidence they enjoy.
I find it difficult to believe that any senior civil servant in 1911 would have thought it within his remit to pass messages suggesting hostile questions to a Member of Parliament. The noble and learned Lord, Lord Denning, to whom on these matters we must always listen with great respect, drew an analogy between the jury in the eighteenth century freedom of the press cases and the jury that acquitted Mr. Ponting. I do not find that comparison altogether acceptable. I believe one of our problems today is that the juries are not parliamentary bodies in the sense in which they would have been understood in the nineteenth century. They are differently composed. They have different views and their behaviour in this particular case seems to me to be an example, though not a sole example, of this fact.
Where I would, if I may, with great respect differ even more profoundly from the noble and learned Lord, Lord Denning, is this: he said that the state and 584 question of what is due to the state was at the heart of the judge's summing up in the Ponting trial, that the state is only something which each individual can measure and define for himself. I believe that if he considers this remark, he will see that this must be inapt. If anyone is allowed to say, "My conscience tells me that there is something higher than the duty I owe to my superiors in the traditions of my service", it can lead him a very long way away. For Louis XIV to say "L'Etat, c'est moi" was perhaps an exaggeration. For Mr. Clive Ponting to say it seems to me utterly deplorable.
§ Lord Tordoff
My Lords, if I may take the noble Lord back to what he was saying about juries, is not the difference between the jury to which he referred in the Ponting case and the one to which the noble and learned Lord, Lord Denning, referred that on this occasion the jury was actually vetted?
§ Lord Beloff
My Lords, whether or not the jury was vetted the jury's capacity to distinguish its role seems to me to be inadequate. That is my opinion. The noble Lord is obviously entitled to disagree.
§ Lord Mishcon
My Lords, before the noble Lord continues, is he advocating the disappearance of juries from this country?
§ Lord Beloff
No, my Lords, I am suggesting that with the juries that we have, legislation probably needs to be much more tightly drafted than it is or we shall go on getting cases where the Judge interprets the law in one way and the jury takes it upon itself to interpret the law in another way. With regard to the contribution of the noble Lord, Lord Hatch of Lusby, I am afraid that what it has done is to point up another reason why it is impossible to dispense with an Official Secrets Act of very much the kind that we have now, though better drafted. That is, that we cannot assume that even Members of Parliament of either House necessarily put the national interest first. It is all very well to say that, of course in any Freedom of Information Act we would provide for nothing touching upon national security. However, the question is: who is to decide national security? If it is left again to the conscience of individual civil servants or to individual Members of either House of Parliament, to probe and to say if they do not receive an immediate answer to their probing that the country is being deceived rather than, "We cannot know that perhaps some important security consideration" of which they are necessarily unaware "is at stake," then it seems to me we cannot do without a fairly severe Act of this kind because the noble Lord, Lord Hatch of Lusby, took the time allotted to his speech in rehearsing matters concerning the "General Belgrano".
I regret also that some of the noble Lords who were mentioned were not present to refute him point by point, but I would say that looking back on his campaign—and I sat through the Questions and the debate to which he refered and the ministerial reply—I am, after two and a half years, totally baffled as to what either Mr Dalyell in another place or the noble Lord are really after. They cannot, alas, resuscitate the Argentinian sailors who died, no doubt believing they 585 were in a righteous cause. Nothing can be reversed in regard to the decision to send the Task force, or to the measures taken to defend it which most noble Lords accepted then and accept now as the proper measures to have been taken. Is there not something ghoulish about bringing up again these unfortunate drowned sailors in order to make points against the veracity of individual Ministers or the Prime Minister herself? Is it not time that the dead of the Falklands war, on both sides, were allowed to lie in peace?
§ Lord Mishcon
My Lords, the noble Lord really must not get away with this. Will he kindly deal with the following question? Would he not agree that all of us—and this is a British tradition—even regret the death of our foes. We want to know: could it have been avoided; should it have been avoided? And we want to know the truth. Is that fallible, is that wrong?
§ Lord Beloff
My Lords, I would agree that we all regret the death of our foes. They die in wars on both sides in a number of ways: sometimes intentionally; sometimes accidentally. It is the cruel result of war. But to say that on each occasion every fatality must be examined to see if it could have been avoided is obviously a counsel which no government and no Parliament could accept. Therefore one asks why this particular tragedy has been drawn out for so long and drawn out in a way which has placed a considerable burden upon Ministers who have been diverted perhaps from the much more important task of knowing where we go in respect of the Falklands by the necessity over and over again to rehearse replies to questions of this kind in both Houses of Parliament.
I think that there is a serious difficulty here in that you can have either consultation or freedom of information. I am not clear that you can have both. If you ask for everything to be revealed, then the willingness of governments to consult must by that degree be curtailed because they will be worried as to the effect of consultation upon their ability to retain in their own hands, for the time being, rightly confidential matters. I am on the whole in favour of greater participation, greater consultation. However, this can only become the case when there is a great self-restraint in what is asked of governments; and sometimes one feels in relation to the campaign for freedom of information that that self-restraint is not present to the requisite degree.
§ 5.42 p.m.
§ Lord Wilson of Langside
My Lords, it is always on the whole encouraging in your Lordships' House to speak—especially at a fairly late stage in the debate, as this is—after someone like the noble Lord. Lord Beloff, who comes out of his corner fighting and ready, as it were, to swim against what I think has been up to date the tide of this debate. I say that particularly because I had thought prior to his speech that the truest words which have so far been spoken were said by my noble friend Lord Hutchinson of Lullington when he said that there is nothing more to say—meaning that it is impossible without repetition or to any purpose to add to the spate of words which has been spoken on this subject since 1911.
586 Before listening to the noble Lord, Lord Beloff—and I do not disagree with everything he says; I just disagree with some of it and I disagree with his conclusion—I had felt that really, if there was nothing more to say, there was little point in going on talking. It is clear, after his speech and that of the noble Lord, Lord Allen of Abbeydale, that there is more to be said that is worth saying.
It is difficult, as has been acknowledged and recognised, to talk about the 1911 Act without mention of Mr. Clive Ponting. Some of us felt at the time that there was perhaps a danger that he might turn into something of a folk hero. That, of course, happily has not happened; because, after all, he was simply a civil servant, apparently a much respected and well regarded civil servant, who broke the rules and then resigned from the service to write all about it, no doubt thus contributing to the knowledge of his readers as to some of the curiosities that go on within Government and also recouping his consequential loss.
That is, of course, a combination which of recent decades has been much sought after by the formerly famous and the infamous alike. But he was wrong to break the rules. It is true—and we must not forget this—that the performance of responsible Ministers in their handling of the issues that were before them may have been less than impressive, and, indeed, on occasions somewhat disquieting. I can well understand why he went to Mr. Dalyell and succumbed to the temptation to pass the papers to him. Of course, as somebody said, if somebody does not yield to temptation the whole situation becomes absurd and there is all the less to talk about.
But situations of this kind can practically always be put right without breaking the rules—and I speak here from some temporary personal experience because I, myself, was sentenced to a term of five years as a civil servant after the general election of 1970. Then, not often, but from time to time, I was driven close to a mild distraction, not only by Ministers but by judges who operated in the sphere in which I was a cog—if, indeed, spheres have cogs. Judges, I found, could occasionally be just as silly as Ministers, and they resented it even more when you told them so—and very occasionally they left you with no alternative or, at least, no sensible alternative. Incidentally, I do not at all blame Mr. Ponting for wanting to write about it. I tried to do that myself after I was freed, but I could not find either a publisher to publish it or a newspaper to serialise it—and, frankly, sometimes I think that that perhaps is just as well.
Anyway, Mr. Ponting broke the rules, and he was disloyal in a job in which you owe loyalty to those who you feel have not always earned it. But although that was so, how on earth the conclusion was reached that prima facie he was also guilty of crime, and how consent to criminal proceedings was sought and obtained, remains to me a little puzzling if not, indeed, baffling. But, then, we know so little about it. We do not even know the duration of the cross-Channel telephone call about which the Attorney-General told the other place—and perhaps there is a lesson in that.
Turning to the Act itself, I think there are several reasons why we should be grateful to my noble friend Lord Wigoder for putting down this Motion. Not the 587 least of these is that the history of this Act itself—its conception, its provisions, its enforcement over the years—has quite a lot to teach us about the way in which Britain is governed and about some of that way which would not be approved by all if we had the time and the inclination to study it, and not only to study it but to reflect upon it. But I do not propose to rehearse the formidable legal, historical and other arguments against it. These have been thoroughly rehearsed in the course of the debate, and will continue to be rehearsed for some little time.
There is one short point that I wish to make. For my money, one of the most damning points against it is that, culminating in the Ponting trial, it has made the law look an ass. It is not open to me here to comment on the contribution to that made by the Attorney-General and the conduct of the trial by the presiding judge. My own personal view—and I emphasise it is my personal view—is that these matters of political and public controversy arising after the trial should have been made the subject of an inquiry under the Tribunals of Inquiry (Evidence) Act 1921. That, I should have thought, would have been a more satisfactory, and certainly a more dignified, way of solving the mysteries surrounding these matters than the exchange of pleasantries indulged in by the Prime Minister and Mr. Kinnock—though these of course are not matters which are relevant to this debate.
What is surely beyond dispute is that from the whole situation it was the law which emerged with the appearance of a proper ass. It is equally surely fundamental to good government that legislation, among other things, should be so framed and constructed as to minimise the danger of the law being given that appearance when action is taken to enforce it. Legislation which does not do that is dangerous and should be repealed or amended, for socially it tends to have a kind of destabilising effect. It is inevitably damaging to the conception of freedom under the law, by which we rightly set great store, because of course it is a concept fundamental to our constitution, and it helps, too, in a practical way to boost the impact of the vociferous practitioners of demagoguery who exhort others to break the law by reference to the Tolpuddle Martyrs and the Chartists, as though the law and the political, social and industrial scene had not changed since 1834. As I think Henry V said at Agincourt, "Old men forget". I may be wrong, but I would have thought that perhaps two decades ago, if demagoguery of that kind had been resorted to it would have inspired, on the whole, raucous laughter from an educated electorate or public. But the belief of many of us that the impact of that kind of thing was negligible was surely shattered by the events of the miners' strike and the rapturous—indeed the quite ecstatic—welcome given to Mr. Arthur Scargill at the Labour Party Conference last year.
I have only one thing that I want to say before I sit down. I was wandering what my peroration was to be, and my peroration reminded me of the noble Lord, Lord Allen of Abbeydale. As I understood it, he suggested that the matter should be left in the hands of the Attorney-General and the Lord Advocate—because of course it is the Lord Advocate who operates in Scotland—and that they should discuss the matter 588 with their political colleagues. Speaking for myself, I must say that I find this a startling proposition. On the one occasion on which a senior Minister attempted to influence my decision to prosecute someone—he did not of course do it directly; it was done through his private secretary and the head of my little group of civil servants—I was shocked because the decision must be left personally to the Lord Advocate or the Attorney-General. I asked the head of my civil servants to let him know that if his political master pressed on he would be liable to have a case on his hands like the Campbell case in 1924, which resulted in the fall of the then Labour Government. I have stated some reasons why I think the Motion is to be welcomed and I hope that the Government will respond to it with speed and enthusiasm.
§ 5.57 p.m.
§ The Earl of Longford
My Lords, I am sorry to see the noble Lord, Lord Beloff, about to leave the Chamber because I was going to speak a little about him, but no doubt he has other pressing engagements. However, I was going to say before that the main points in favour of the Motion have been made so well by the noble Lord, Lord Wigoder, by the noble and learned Lord, Lord Elwyn-Jones, and by many speakers, including the last one—although I could not quite follow where Mr. Arthur Scargill came into this particular debate: I know he is usually relevant, but hardly today—that I can be very brief and I shall not keep the noble Lord, Lord Beloff, for very long. He seemed to be under the impression that Mr. Clive Ponting had not as much right to have a conscientious dissent as some others. He referred to him in a rather patronising way. Mr. Ponting followed a course of action which I gather was followed before the war by Lord Vansittart who, no doubt acting from the highest motives, briefed Sir Winston Churchill (then a leading critic of the Government) in a most thorough fashion—the noble Lord Lord Beloff, wishes to intervene, but may I just finish the sentence?—and I do not believe he was alone in that respect.
§ Lord Beloff
My Lords, would the noble Earl make a direct comparison between the role and status of Sir Winston Churchill and the role, status and actions of Mr. Tam Dalyell?
§ The Earl of Longford
My Lords, I am afraid that I do not distinguish, when it comes to conscience, between the status of one public man and another. I am sorry. I have finished with the noble Lord, Lord Beloff, so, if he likes, he can catch the Brighton train.
I was going to make a few remarks about leakages, although the main topic of course is the reform of the law. We politicians or ex-politicians—and I think most of us here can describe ourselves as politicians or ex-politicians—or however we may see ourselves, are rather more lenient to our colleagues in this matter than we are to civil servants. I have seen the view attributed to Mrs. Thatcher that there have been more leaks under her Government (though this was in the early days) than under any other Government. I am sure that my former revered chief, the noble Lord, Lord Wilson, would be glad to hear about that because in his time there was a good deal of talk about 589 leakages. I am bound to say that after I left the Cabinet there was not so much talk, so perhaps I could be identified by MI5 as the guilty man. However, with leakages there are always questions of propriety and conscience. Sometimes one feels that they are justified and sometimes not, but in the end only the Almighty will know whether the leakage in question was justified on moral grounds.
I met Mr. Ponting, a man of obvious ability, as anybody who reads his book can discover. I join the noble Lord, Lord Hatch, in giving a small "puff" to that valuable book, and will lend it to anyone who needs it. At any rate, he seems a very able man and a man of deep sincerity. I would add only one thought about the Ponting trial. Quite a lot of us seem to agree—though the noble Lord, Lord Beloff, had a rather idiosyncratic view about the role of the jury, and when they disagreed with him they were to be deplored—that that was a mistake, and yet it may have turned out well in the end. We can say that it was like Suez. Suez was a colossal error, but in the end we could all feel better because of it. It helped to clear our minds about the role of Britain. So we like to be optimistic about this case.
But it is worth remembering—and Mr. Ponting told me this himself—that when he got up on the morning on which the verdict was to be given he expected to be going to prison for quite a long time. That was the situation at that time. So it was not quite so obvious at that time that the trial was just a formality and that it would all turn out for the best. It did turn out for the best because the jury was so sensible and indicated that they did not think much of this Act. They seemed to agree with everyone here, including the noble Lord, Lord Elton, in that respect.
The most encouraging remark of the day was when the noble Lord, Lord Elton, said that he would not resist this Motion, so I must take it that he will commit himself to trying to bring about a change. I hope that he will remain in the Home Office as Minister of State, or will go even higher, so as to be able to give effect to his word. I agree entirely with all that has been said about, and quoted from, the Franks Report. The noble Lord, Lord Franks, is a man whom I admire as much as I admire anybody in public life. I only regret that he does not come to this House more often. The Liberal Peers are a little remiss in not persuading him to join in the notable exercises in this House. At any rate, he is a marvellous man and it is a marvellous report. He was not quite so good on the Falklands. That was a bit of a whitewash; but perhaps that was exceptional. But on the question of information he did a marvellous job, and I only hope that eventually we shall give effect to his ideas.
The noble Lord, Lord Elton, told us that in recent years there has been a general liberalising of the flow of information, and he gave some examples, which he is entitled to give. Let us take the Home Office, which he represents so gracefully. I have dealt with a dozen Home Secretaries since I became involved with the extraordinary subject of penal reform, as well as many spokesmen for the Home Office in this House, and I have never known one who was more effective or more popular than the noble Lord, Lord Elton. So it is not his fault if the flow of information is not quite what we 590 would wish. But I think it would be a mistake to assume that this flow of information is pouring out nowadays just because there was a television programme about Strangeways in Manchester.
I should like to talk about the Parole Board. They have never been persuaded to give reasons for their decisions, and now the situation is rather worse—at any rate, in the case of a number of prisoners—because even that function has been taken away from them by the Home Secretary, who, we are sure, will not give reasons. So when it comes to persuading the Home Secretary or the chairman of the Parole Board, under his auspices, we know how difficult it is.
There is one point which might not occur to every noble Lord but which I should like noble Lords to think about. I find it very hard, and most Members of the House and ex-Ministers find it very hard, to make contact with officials. That is the tradition. I must not identify the individual, but some years ago I asked a very high official in the Home Office whether I could talk to someone who was in charge of the Prison Department. He said that he saw no reason why it should not happen; but then he wrote to me, regretfully, and said that it was impossible because, if I did, every Tom, Dick and Harry in another place—although he did not use that expression—and all sorts of other people, would want to see him. So that permission was refused. I am sure that it was not the noble Lord, Lord Harris, who was in any way responsible for that denial, but that was the situation.
In all seriousness, I think that nothing would help us more with our functions here, and in the House of Commons, than if we were allowed to see officials with the approval of the Minister. But every time you want to obtain a bit of information you have to make an appointment with a Minister, who is a very busy man, so it may take a month, and an official has to be present. It is one of the ways in which information that is available to officials is blocked in the most unfortunate fashion.
I think that there is a bias on the part of civil servants to keep information to themselves. There is also a bias on the part of those in journalism or on television who want information spread around as much as possible. I do not know about politicians. We are betwixt and between in that argument. I would therefore try to find what Sir Winston Churchill called "a rescuing genius"—a just man who is not biased in favour of the side that I am taking. I take a former head of the Treasury, Sir Douglas Wass. He was head of the Treasury for nine years and he has now come out firmly in favour of much more freedom of information. I do not think I can begin to improve on what he said, which is available to all noble Lords. But, personally, following my own party leader, I support the Motion.
§ 6.6 p.m.
§ Lord Grimond
My Lords, I agree with the noble Earl, Lord Longford, that everything that could be said in favour of this Motion has been admirably said by my noble friend Lord Wigoder. I also agree with the noble Earl and with my noble and learned friend Lord Wilson that it appears that there is a very strong tide running through this House this afternoon in favour, first, of repealing Section 2 of the Official Secrets Act; and, secondly, of the widest possible dissemination of 591 information. I had rather thought that these feelings were shared by the Minister, and I should be grateful if, when he winds-up, he could make it clear that not only will he not oppose this Motion but that he shares the general feeling that (to use a phrase which originally fell from the lips of the noble and learned Lord, Lord Elwyn-Jones) Section 2 is a mess, and therefore ought to be repealed and replaced by a narrower definition; and that we must have as much information as possible. That is the first point that I want to make, and I trust that it will be confirmed by the Government.
Secondly, I agree very much that whatever legislation is passed there will be objections to it, and much will depend upon how it is administered. The noble Earl, Lord Longford, has already referred to the leakage to Sir Winston and his colleagues, which was highly approved of at the time but which led to hostile questions in the House of Commons. There was some remark about the fact that the original Act was perpetrated by the Liberals. In spite of that, it has never seemed to me that Mr. Asquith was deeply concerned about internal security. We now know that he whiled away the time during Cabinet meetings by retailing state secrets to his girl-friend. Nobody ever thought of Section 2 being brought down upon him, and I do not think that any harm came of it. But it depends upon how it is administered.
I also think that the time has come to look into the whole constitution and functioning of MI5. There is no doubt that intelligence in war, and foreign intelligence, is of the greatest importance and may be of crucial importance—for example, in connection with naval battles in the first world war and with the desert in the second world war—but the need for MI5 to investigate leaks of internal matters in this country is not to me wholly clear. I fear that they may do more harm than good, but I accept that it largely depends upon how they are controlled. But I should like to think that the Government are reviewing the whole function of MI5 as it refers to internal matters.
As to the freedom of information, the purpose for which we want more information is to achieve better Government, and to get a better informed public who therefore can bring better judgment to bear upon them. It is not to supply sensational stories to the press or even to supply one-theme lobbies with as much information as they can lay their hands on. It is to improve the system of government. I cannot believe for one moment that Government would be improved by the constant dissemination of private conversations. There is no evidence of this in all history and it would lead only to closer and tighter secrecy. Again, I think the noble Lord, Lord Maude, was quite right in saying that the result of too wide a dissemination of unnecessary information would be that secrecy would be deeper.
One of the ways in which we can achieve better Government is to have free and confidential discussions among people of differing views without the fear that it will all appear in the press the next day. I also agree with the noble Lord, Lord Maude, that a very heavy responsibility lies upon the press. What is called investigative journalism is now doing government in this country quite considerable harm. There is 592 no possible excuse for some of the methods they indulge in to get information. But having said that, I thought that my noble friend Lord Wigoder gave absolutely concrete examples of the type of document and the sort of information which should be made available which is not made available and for which there is no possible reason for keeping secret.
But to my mind it is a question not only of making the relevant information available but how it is done and what sort of information is made available. In point of fact this country is flooded with information. The trouble is that a lot of it is irrelevant, a lot of it is inaccurate and a lot of it is mischievous. The kind of information that people want if they are to make a sensible judgment upon current matters is, for instance, that in the Budget spending and the raising of money should be set side by side. The presentation of the national accounts is a scandal. I speak subject to correction by such experts as the noble Lord. Lord Mishcon, but I suspect that it would land any private company in the Old Bailey. There is no distinction between capital and income, and expenditure and income are not considered together.
If one takes any strike, who knows what are the rights and wrongs, or what are the mere facts, of, for instance, the teachers' strikes? Who knows what is the real position about drugs? At the moment we are governed by a series of miscellaneous leaks and comment upon them, very often highly prejudiced comment. I think there is a case—I do not know how one would organise it—for ensuring that the basic facts of major disputes in the nation are set out.
Here I come to the Lobby system which so far as politics is concerned is very much at the heart of how information is disseminated. I personally think that it probably has worked well, but I am also inclined to think that it should now be looked at again and should be either abolished or very much widened. I think it is leading to an oligarchy, so to speak, in the press and is arousing considerable jealousy in the rest of the press which therefore goes out of its way to indulge in the sort of practices of which the noble Lord, Lord Maude, and I disapprove.
The Government spend some £30 million on advertising. I should have thought that it would not be impossible to have an impartial authority which could undertake some more useful advertising of the facts in dispute, rather than the present type of advertising indulged in by the Government. Therefore, I wholly support the proposition put forward by my noble friend, but I end by entering one caveat.
My fear is not that by passing a Freedom of Information Act, or whatever you like, you will actually detract from the power of the House of Commons. That seems to be the fear of the Government. My fear is that you would confuse the responsibilities of the House of Commons, of the House of Lords, and of the Government. We have here the separation of functions of the Government and of Parliament. This is breaking down. The traditional method of Parliament in this country was that Members were sent down to air the grievances of their constituents and their own views; not to govern the country but to stop the Government, to thwart the 593 Government, to probe the Government, if you like—but not to take part in Government. This is breaking down.
I was for a time a member of one of the new specialist committees of the House of Commons. It was the Immigration Committee. After a time I began to sympathise with the Minister. He used to come and tell us his terrible problems. He supplied us with endless information so that we were kept up night and day reading documents. I found that I was beginning to sympathise with the man. I was not paid to sympathise; I was paid to make his life hell and to say, "The People of Orkney and Shetland are fed up with this Government. Now go away. Don't worry me and ask me what to do. You are the Government—do it". That is on the whole an out-of-date attitude, but still I think it is worth keeping the Government at arm's length to some extent and not to become too involved in the decision-making process.
Therefore, while I would support this Motion and I think it may be necessary reluctantly to have legislation about freedom of information, I nevertheless would say that Parliament ought to hold on to its basic business, which is to harry and thwart the Government and not to he kind to them.
§ 6.14 p.m.
§ The Duke of Portland
The noble Lord, Lord Wigoder, proposes that Her Majesty's Government should introduce legislation which will repeal Section 2 of the Official Secrets Act 1911. I presume that the noble Lord, Lord Wigoder, is not proposing that this Act should be repealed before a measure to protect specific classes of information has been passed by Parliament. I fear that it may prove difficult to reach a consensus on the terms of the proposed measure to protect specified classes of information the wrongful disclosure of which would cause serious national harm. For many years the desirability of amending or replacing the Official Secrets Act 1911 has been widely recognised, but the difficulties of reaching agreement as to the scope and terms of a new Act have so far proved insuperable.
The noble Lord, Lord Wigoder, suggests that the public should possess a general right of access to official information subject only to specific exemptions, but when we come to prepare the specific exemptions I think that the list may well prove as long and as complicated as Section 2 of the Official Secrets Act 1911. The proposed general right of access by the public to official information will, I fear, lead to demands for information that may prove highly inconvenient to whatever political party may be in office.
For instance, someone may have heard or may surmise that the Government may be about to take a measure affecting a particular commodity. He or she may demand to know if this information is correct. If the official whose duty it is to reply says that he cannot comment, the inquirer may claim that he has a right to know and will threaten to apply to the courts. If he receives a reply which immediately gives him the information he requires he may then move swiftly to the nearest telephone and make profitable use of this information. I fear that the proposal of the noble Lord, 594 Lord Wigoder, would place such state owned companies as may remain in the United Kingdom at a serious disadvantage compared with those that are privatised. The latter would be able to draw a veil over their activities while the former would have to conduct their business in the full glare of publicity.
I will now turn for a moment to foreign relations. One of our representatives abroad may have succeeded in reaching a position of real friendship and trust with the members of the government to which he is accredited and may be favoured with information that is not open to representatives of the media. If it is found that the reports which he forwards to London are not treated as confidential but as official information to which the public have a general right of access, then that representative's efforts will have been in vain and it will not be long before it becomes generally known abroad, worldwide, that confidential information imparted to Her Majesty's representatives will become open to the public.
So long as we have a secret intelligence service, like every other country, the work of this organisation has to be conducted in secrecy and its operations cannot be subject to a general right of access to official information. For instance, if the pre-war efforts of our secret intelligence service to get hold of the German cipher machine Enigma had failed as a result of some leak due to general access to official information, then our forces would have been grievously handicapped and many thousands of lives lost.
I fear that the proposal of the noble Lord, Lord Wigoder, is too idealistic. In my mind, it faces us with these alternatives: do we prefer a general right of access to official information or the prosperity and safety of our Realm?
§ 6.21 p.m.
§ Lord Jenkins of Putney
My Lords, I venture to suggest respectfully that the choices before us are not quite so bleak and so harsh as the noble Duke has just suggested. He says that we have a free choice between, on the one hand, unrestricted information open to anybody, and, on the other, a totally secret state. As in most political matters, and whether or not we like it, we have to strike a compromise and discover a happy medium. The noble Lord, Lord Wigoder, in his very impressive opening speech, suggested that that line is drawn in the wrong place on the side of excessive secrecy. The noble Duke, the Duke of Portland, has just suggested that the position we have at the moment is ideal—but I believe he may not have considered the full implications of our excessive devotion to secrecy.
The difficulty about the Official Secrets Act is that it engenders a general flavour and essence of secrecy, and that under it other secrecies proliferate. Secrecies and greater secrecies have been growing ever since 1911. It is in the nature of things, of course, that a Government will wish to play their cards pretty close to their chest. It is also in the nature of things—in the nature of democracy, at any rate—that the public have a right to know. In drawing the line, it is always the case that the line is drawn too far on the side of secrecy.
Moving from opposition into power, a Government begin to adopt the view which is natural to Government: that they want to keep things to themselves. There is the 1911 Act—a Liberal 595 measure. Subsequent endeavours to introduce freedom of information have failed on both sides. The Labour Government failed to get such a measure through, and the Conservative Government made an attempt but again failed. Governments tend to gather their supporters around them and say, "We must get our policies through and we can only do that if we keep things pretty dark". That is why we have the situation in which we now find ourselves.
We have far too much secrecy. Ours is one of the most secret countries in the world. I had a peculiar experience of that myself when I was Minister for the Arts for a couple of years (for too short a time, I thought). At the end of my term of office I decided to write a book, a copy of which I have with me now, about government and the arts—an area remote, one would have thought, from the realms of secrecy. But, like anybody else in a similar situation, I was subject to certain rules and regulations. Under the rules and regulations I had to show—because I was instructed to do so and I am always an obedient chap, so I conformed—to the authorities a copy of any extract which related to my relationships with other Ministers and with civil servants during my period of office. So, having prepared a chapter on this subject, I obediently submitted it to Sir John Hunt, as he then was, who was then Cabinet Secretary.
I do not believe that either of us imagined at that time that we would both together be Members of this House, and I regret that he is not here tonight—but I shall not be saying anything to his disadvantage. Sir John had a job to do. His job was to consider the material I was proposing to include in my book, and he did so. He wrote to me, as he had to do under the rules, saying that I was not permitted to say the things I was proposing to say. We had some correspondence which concluded in a way which I shall now describe to your Lordships, if noble Lords will bear with me.
The Radcliffe Report on Ministerial Memoirs provides, among other things, that:a former Minister should not reveal the opinions or attitudes of colleagues as to the Government business with which they were concerned".Under that ruling Sir John Hunt had no alternative but to inform me that I could not write about other Ministers and civil servants—or anything else—and that I would have to omit the chapter altogether.
After some quite amicable correspondence between us I wrote to Sir John as follows:One of the objects of the book is to show how decisions are made and this cannot be done without demonstrating how advice is given by civil servants and quoting opinions expressed by Ministers. Nevertheless I am very ready to go along with the recommendations of the Committee of Privy Counsellors whenever I can do so without damage to the public interest. I regard such damage as being done whenever information is concealed without good reason"."Without good reason", my Lords—that is the important point. It is quite impossible to say that there really was good reason, even if there may have been some discomfort caused to individuals, for the suppression of information about discussions between Ministers and civil servants in an area remote from national security. But such is the case all over the place, and I myself have been pestered and dogged by secrecy for a good deal of my life.
596 I therefore warmly welcome the proposal of the noble Lord, Lord Wigoder, to remove Section 2 of the Official Secrets Act. But I also readily agree that we must replace it with something else. As the noble Lord, Lord Donaldson of Kingsbridge, is now in his place, I may say that when I approached him as my successor as Minister for the Arts and asked whether I could refer to the papers relating to my period of office, he raised no objection whatsoever. He was kindness itself. That may have been due to the fact that at the time we were both members of the same party. The provisions of this Act create a cloak, a practice and a custom of secrecy under which we all tend to operate, and therefore I welcome this Motion in the hope that it will bring a change of custom.
More seriously, I have run into the problem of secrecy in another context. Your Lordships belong to the vast majority of people who are neither the surveillers nor the surveilled. Perhaps I can contribute something to this debate from the point of view of the minority, the surveilled, who are a much larger minority than the surveillers. I am not sure if I am still among the surveilled, and rather suspect that I may not be.
It may be thought that I am no longer an enemy of the state. As the state now apparently embraces the Government—if we are to believe, as has been said in court, that the Government and the state are indistinguishable from each other—I hasten to say that I am no friend of the Government. I would not use the word "enemy" because it is not a word I use as freely as some people do, but it is not the case that I am in any way soft on the policies of the present Government.
My attitude to the secret services is ambivalent. For a number of years they have been of great nuisance to me. On the other hand, they have done me some services. If I tell your Lordships that my presence in this House might be regarded as one of their achievements there will be those among your Lordships who may wish to revise their views of MI5, MI6, or whatever it may be.
Those of your Lordships who have seen Miss Cathy Massiter on television—and here I want to say a word about the Campaign for Nuclear Disarmament—will agree with me at least on one thing. She is obviously an intelligent woman. I have reason to believe that that is not universal in the intelligence services. But even Miss Massiter showed no sign of political knowledge—and I think very close political knowledge is desirable—when she was asked to select a suitable person to finger among the CND leadership. I was chairman of the campaign immediately prior to the present chairman, Mrs. Ruddock. The problem could easily have been resolved by inviting a secret service person to be present at all the meetings. I would have pressed for the acceptance of such a proposal because there is nothing secret about the activities of the Campaign for Nuclear Disarmament.
I would certainly not have selected Mr. John Cox as the person to be surveilled. They would have found that he was, it is true, a member of the Communist Party. It is legal, and something which Mr. Cox has never tried to conceal. He was also, and still is as far as I know, a convinced Euro-Communist. In that role his attitude to the Soviet Union sometimes seemed to me almost as anti-Soviet as that of the Trotskyists. If you 597 looked round the table of the Campaign for Nuclear Disarmament there was no one who could remotely be regarded as doing something hostile to the state.
What we are talking about here is differences of political opinion. If we are not very careful, members of Governments will begin to regard differences of political opinion as tantamount to an attack upon society as a whole. The feeling that those who disagree with one politically are, ipso facto, hostile to everything one believes in is a widespread conviction; and it is held inside this House, as your Lordships will have heard this afternoon. It is vital that we draw a distinction between what is, and what is not, permissible in our opposition, and that we do not attempt, as a measure of secrecy, to prevent the expression of legitimate political views. Neither is it right and proper for a Government in office to carry out surveillance and secrecy operations against any legitimate organisation.
One of the benefits that I look forward to from the consequences of the action which the noble Lord, Lord Wigoder, is proposing—assuming that the Government will, as they are saying and as I hope, provide an opportunity for it to be put into effect—is that we shall begin, at long last, to remove the veil of secrecy which has existed for far too long in this country; that we shall move into a freer climate in which we shall make a proper and right distinction between what is legitimate and what is illegitimate. This is essential if we are to live in a healthier climate of opinion and of political difference.
§ 6.35 p.m.
§ Lord McGregor of Durris
My Lords, I shall not add directly to what has already been said about Section 2 of the 1911 Act. I wish only to comment on one aspect of the legislation proposed in the Motion of the noble Lord, Lord Wigoder.
In order to see certain English attitudes in perspective, I shall remind your Lordships of two widely reported cases. In 1971, Dr. Daniel Ellsberg purloined from the United States Department of Defense 47 volumes (7,000 pages in all) classified as "top secret" and "secret", analysing The History of United States Decision Making Process on Vietnam Policy during the period 1947 to 1967. He then handed 18 of those volumes to the New York Times. When the paper began to publish summaries and portions of the text, the United States Government sought a preliminary injunction in the District Court in New York to restain further disclosure and to impound the documents. The Government contended that possession of the information by the New York Times involved a serious breach of the security of the United States and that further publication would cause,irreparable injury to national defense".The district judge denied the Government's application for an injunction. In a sentence startling to English eyes, which are accustomed to a press voluntarily collaborating with governments in an informal scheme of prior restraint upon matters deemed to be of crucial importance to national security, the judge wrote:nobody has been able to find a case remotely resembling this one—where a claim is made that national security permits a prior restraint on the publication of a newspaper".598 Congress had refused, in deference to the First Amendment, during the First World War, to set up a system of pre-censorship, and no action was taken on "leaks" during the next half-century.
The judge, Judge Gurfein, who had himself been a senior intelligence officer during the war, sat in camera to enable the Government to pinpoint what they believed to be vital breaches in national security of sufficient import to controvert the right of a free press. In the judge's view they failed to show actual or imminent danger and succeeded only in showing that the breach in security was embarassing and would cause, as the judge said,the jitters in the security agencies themselves and indeed in foreign governments who deal with us.He concluded that,the security of the nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, an ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know … This has been the genius of our institutions throughout our history".My second case involves Miss Sarah Tisdall, whose actions I do not admire. She was a 23-year-old official in the British Foreign Office who last year leaked to the Guardian newspaper short documents concerning when and where cruise missiles would arrive in Britain. These were classified by the Ministry of Defence at the second highest level of security. The Government responded in two ways. First, they obtained an injunction requiring the Guardian to yield up a main document which it had already printed. The Government wanted to get the actual document back because it has secret markings which would enable the source of the leak to be identified.
The Guardian attempted to safeguard its source by appealing against the decision on the order made by the judge of first instance, which required the return of the document. The Guardian lost its appeal. One appeal judge said:it is in the interests of all of us that we should have a truly effective press and … Parliament … has clearly recognised the importance that attaches to the ability of the press to protect their sources [unless] disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime … It is in my view, clearly established that it is necessary in the interests of national security that the sources from which this document came should he identified".The Government's second step was when, as a result of the return of the document, Miss Tisdall was identified as the leaker. She was prosecuted under the Official Secrets Act and sentenced to six months in prison, even though she was a first offender and of previous good character. She appealed against sentence, but the Lord Chief Justice held that a deterrent custodial sentence had been unavoidable and appropriate, and declared that it is,not possible to run a government … if confidential and secret memoranda are being divulged to outside bodies by members of the staff".It is a measure of the anxiety which this case created among the politically informed public that the then recently retired Head of the Civil Service observed in the course of writing about the case:we must be almost alone in the civilised world in invoking the criminal law to stop leaks irrespective of the nature of the injury or of the intentions of the leaker",in circumstances in which the leaks, "are merely embarrassing".
599 The Pentagon Papers case and those of Miss Tisdall and the Guardian raise identical issues. In each, secret material was stolen from a Government department and published in a newspaper; in each, a Government sought the return of the material; in each, a Government asserted that national security had been endangered; and, in each, the thief was prosecuted. However, it is striking that what Mr. Justice Holmes called the,instinctive preferences and inarticulate convictions",of the American and English judges which emerge from a reading of their judgments are fundamentally different.
Even Chief Justice Burger, in dissenting from the opinions of the majority of his brothers in the Supreme Court, criticised the New York Times not so much for publishing the stolen documents as for failing,to give the Government an opportunity to review the entire collection and determine whether agreement could be reached on publication".All the American judges started from the assumption that the New York Times had a right and a duty to print the Pentagon Papers. Some of them regarded the First Amendment as conferring an absolute right; others took the position that the courts had to strike a balance between the strongest of presumptions that the public has a right to know and the needs of national security and defence. Nevertheless, they all approached the question on the footing that only the most compelling of circumstances could qualify a newspaper's duty to publish.
In England, that assumption seems to be reversed. Here it is assumed, as the senior judge in the Court of Appeal put it, that:the responsibility for deciding what should and should not be published is that of the government of the day and not that of individual civil servants or editors".That is the law, but for Governments or for editors to assert that they alone should have the power and responsibility to decide what should be published when national security is said to be involved is to endow themselves with an arrogance intolerable in a democracy.
New legislation should give clear jurisdiction to the courts to test a Government's reliance on national security as a ground for prior restraint on publication. It is to be observed that the effect of the First Amendment in the United States has not been a rash of damage to the national security, which seems, when compared with that of Britain, to have been at least as well, if not better, protected during the past 40 years. These attitudes, together with the law of defamation, of confidence, of copyright, of contempt of court, of parliamentary privilege and, importantly, of official secrets, impose such restraints upon publication that Mr. Harry Evans could write without great exaggeration of "the half-free press".
To a large extent these legal restraints stem from the deeply ingrained habit of secrecy in which British government is conducted and in which other institutions are steeped. Against such secrecy, the media are an essential protection. As one of their functions, these no doubt frail vessels disseminate much information without which the electorate could not make rational 600 choices. Sometimes some of them are wildly irresponsible. Most of the time all but a small handful of them are honest, if partisan, commentators upon events and critics or supporters of Government. The more information they have, the more likely they are to be responsible. Who else will render the flow of information which new freedoms will produce available and useful to citizens at large? The media would gain much from the Motion, which I am very glad to support.
§ 6.48 p.m.
§ Lord Ardwick
My Lords, I intended to speak at length in this debate from the point of view of a newspaperman, and to support this Motion. Indeed, I had set down a Motion of a very similar kind. However, I had to make an emergency trip across the Atlantic and returned only today, too late even to hear the noble Lord, Lord Wigoder, opening the debate.
I have asked to be spared a minute or two simply to deal with the point made by the noble Lord, Lord Maude. He suggested that there had been a decline in the standards even of such papers as the Guardian, the Observer and The Times, and he associated it with investigational journalism. I have no practical experience of investigational journalism, and I do not intend to deal with that; but he suggested that in the golden age of his youth, and my youth, such newspapers had higher standards.
I was working on newspapers at the same period as the noble Lord. Forty-two years ago I ceased to be news editor of the Observer. Thirty years ago I ceased to be London editor of the Guardian. My recollection is that much information about what Government and Government departments were doing reached us from a variety of non-official sources. I think it was the same quality of information as that which reaches Members of the Front Bench of an Opposition.
Our first duty, we felt, if the information seemed interesting and valid, was to check it, and then, having checked it, to publish it if we thought that it was of interest and was in the public interest. But in those days we did not quote the source of information. We did not risk our own skins or those of our informants. We did not feel it necessary to quote the source. What really mattered was to get the information to the public. The integrity of the newspaper and of the correspondent who wrote the story was considered to be a sufficient guarantee to readers of the story's authenticity.
I have often asked myself during the recent troubles of the Guardian and the Observer, "Why do newspapers today flourish the documents they have obtained?" There are, I think, several reasons. One is that many journalists want to be able to quote directly the information they now receive on Lobby terms from Government spokesmen. The other, however, is to protest at the secrecy with which the Government try to cloak so much of their activity. The very publication of the source is a form of protest. I believe that it is brave and public-spirited of newspapers to quote a source if they can do so without betraying the provider of the information.
The noble Lord, Lord Beloff, spoke of another golden age of 1911 when newspapers were not trying 601 to destroy the Government. He has forgotten that those were the days of party newspapers when, as Winston Churchill put it, 50 per cent. of the press were trying to destroy the Government and 50 per cent. were trying to protect it.
§ 6.52 p.m.
§ Lord Harris of Greenwich
My Lords, I should like to begin by saying how much I agree with what the noble Lord, Lord Ardwick, has just said. The noble Lord has made the point that I intended to make in reply to the noble Lord, Lord Maude of Stratford-upon-Avon. I find it a little hard to identify with quite the same degree of precision as the noble Lord that golden age of journalism which he found rather more easy to identify. When one looks at the British press of the nineteenth century, one finds a situation in which leaks were constantly made to newspapers and bribes often offered to editors of newspapers from secret service funds. I am perfectly aware of the many defects of British journalism at the moment. Some of these were discussed in the debate on the Yorkshire Ripper case in this House only a year or so ago. I believe, however, that the noble Lord over-stated this point of his argument.
We have had a remarkable debate. There have been very few defenders of Section 2 of the Official Secrets Act. It always gives me particular pain to disagree with the noble Lord, Lord Allen of Abbeydale. Since we have been Members of this House, I do not think that we have differed seriously on any issue. I am bound to say that today was the first such occasion.
§ Lord Allen of Abbeydale
My Lords, I must have put my points very badly to judge by the number of noble Lords who have misunderstood and have disagreed with what I did not say. I made it clear that I would like Section 2 to go and to be replaced by something on the lines of Franks. I then went on to ask whether the price for doing this might prove too high.
§ Lord Harris of Greenwich
My Lords, I am very glad that I was not the only one to misunderstand my noble friend, if I may so describe him. I am glad that he has made his position clear because he carries great weight, rightly, in this House, outside, and in the Civil Service.
Before entering upon what I wish to say, I should perhaps make one point. I do not wish to be discourteous either to the noble Lord, Lord Hatch, or to the noble Lord, Lord Beloff, but I do not intend to become involved in the controversy over the sinking of the "General Belgrano". This matter has been discussed at considerable length. With great respect to both noble Lords, it would be better to have that debate, if we wish to discuss the matter further, on another day rather than when we are discussing the Official Secrets Act.
As my noble friend Lord Wigoder said when he moved the Motion, this Act was hurried onto the statute book in 1911 because of the very real fear of German espionage. One case at that time had a decisive effect on the then Liberal Government. In the summer of 1910, German army lieutenant Siegfried Helm was observed sketching the harbour defences at Portsmouth. He was detained and charged with an 602 offence under the Official Secrets Act 1889. As it happened, he had been seen at work by two British army officers and their evidence and that of Lieutenant Helm's notebook persuaded the jury to convict him, and that they did. But, as a result of the controversy that was touched off by that particular case, it became clear that the 1889 Act was unsatisfactory.
That Act required the prosecution to show unlawful intent which was, of course, exceedingly difficult to do. It was far too easy for an accused person to say that he was not involved in espionage but acting perhaps on behalf of a private company that required the information for entirely innocent purposes. That is why we had the 1911 Act—that and the level of German intelligence activity in this country.
The Bill was introduced, not in the House of Commons as many people tend to assume, but, in fact, in this House, by the then Secretary of State for War, Vicount Haldane. The entire proceedings occupied less than half an hour. What he said in moving the Second Reading, at column 641 on 25th July 1911, demonstrates the degree of bipartisan support that existed for the Bill.The Bill"—he said—has been under consideration for a long time by the Defence Committee"—he meant the Committee of Imperial Defence—and the Bill is their work".At that time Members of the Opposition were closely associated with the work of that committee. Therefore, the Bill roared through both Houses of Parliament without any serious discussion. I have reread the debate that took place in this House and also that which took place in the House of Commons. It is perhaps worth reminding your Lordships of the comments of the junior Minister in charge of the Bill in the House of Commons, Colonel Seely, the Under-Secretary for War—
§ Lord Harris of Greenwich
This is a good Alliance speech, I can assure the noble Lord. Colonel Seely's comments provide almost a classic example of how Parliament should not agree to hurry through legislation of this kind. There was, on both sides of the House, total support among Conservative Party and Liberal Party Members, the very limited number of Labour Members and, indeed, the Irish National Party. No serious dissent was expressed. Colonel Seeley said:I got up and proposed that the Bill be read a second time, explaining in two sentences only"—that is actually a slight understatement—that it was considered desirable in the public interest that the measure should be passed. Hardly a word was said and the Bill was read a second time. The Speaker left the Chair. I then moved the Bill in Committee. This was the first critical moment. Two men got up to speak, but both were forcibly pulled down by their neighbours after they had uttered a few sentences, and the Committee stage was passed. The Speaker walked back to his chair, and said 'The question is, that I report this Bill without amendment to the House'. Again two or three people stood up; again they were pulled down by their neighbours, and the Report stage was through. The Speaker turned to me and said: 'The third reading, what day?' 'Now, sir', I replied. My heart beat fast as the Speaker said: 'The question is that 603 this Bill be read a third time'. It was open to anyone of all the members of the House of Commons to get up and say that no Bill had ever yet been passed through all its stages in one day without a word of explanation from the Minister in charge … But to the eternal honour of those members, to whom I now offer, on behalf of that and all succeeding governments, my most grateful thanks, not one man seriously opposed, and in a little more time than it has taken to write these words, that formidable piece of legislation was passed".That is why we have the horrid mess that we have been discussing today. It is a classic illustration of how Parliament should not agree to emergency legislation of this character. If we compare what happened on that occasion with the steps taken by Governments of both political parties so far as the Prevention of Terrorism Act is concerned, we see a far more reassuring example of what should be done when it is necessary to legislate with speed.
Colonel Seely's judgment that everyone would be deeply grateful to those honourable Members who remained silent in 1911 has unhappily not proved to be the case. Many succeeding Governments have had the gravest doubts about Section 2, and they have expressed them repeatedly. I should like to give two examples which are appropriate this afternoon. We have the rather important view of the present Home Secretary, Mr. Brittan. In 1978—he was at that stage in Opposition—he said:Section 2 is simply indefensible, yet it is still there. Why is that? It is there in spite of the Government's assurances because they have not had the courage to fight and overcome the strenuous rearguard action of Whitehall".If one compares that sort of language with what we heard this afternoon from Mr. Brittan's close associate—if I may so describe him—the noble Lord, Lord Elton, one sees that that rather simple view of how this matter should be rectified with speed by the then Government did not appear to be exactly echoed in the speech which we heard from the noble Lord the Minister. What then was a simple matter had become a great deal more complicated. The noble Lord said it was not an easy matter. It might take a bit of time to get it right. He reminded us, very properly, of the fact that the present Government introduced a Protection of Official Information Bill in 1979. He seemed to indicate—indeed, he not only seemed to indicate; he did indicate—that progress was not made because there was an absence of widespread agreement, and in the absence of widespread agreement the Government could not go on with the measure.
I am bound to say that since 1979 there have been a few other Bills on which there has been a fair amount of disagreement. I believe that after Easter we are going to have before us the Bill to abolish the Greater London Council. I understand that there is some slight measure of disagreement on that. But that has not stopped the Government from legislating, whereas in 1979, apparently on the strength solely of a debate on the Second Reading of that Bill, the Government decided to withdraw it. Of course the reason they withdrew it was that they had managed to unite very nearly every single element in this House and outside it against a Bill that would have made the provisions of Section 2 look like an extremely liberal piece of legislation.
The other reason, which we have to remind ourselves about, is that at that stage the Blunt case had 604 just exploded into public consciousness. It was pointed out that if that Bill had been on the statute book the revelations that were made about the fact that Blunt was known to be an agent of the KGB for a substantial number of years would not have been allowed to be published in any newspaper in this country without the risk that that newspaper would be prosecuted. That of course is why that Bill did not go any further on that occasion.
But unhappily, since 1979 very little has been done. Sir Michael Havers, another fierce critic of Section 2, has since been elevated to his office as Attorney-General, and, as we all know, has made a great deal more use of the Act than any of his predecessors. In doing so he has made its absurdities a great deal clearer. Let us look briefly at three cases: that of Sarah Tisdall, which has been referred to by my noble friend Lord McGregor; that of Mr. Ponting and that of Miss Massiter. First, may I make this clear. I certainly hold no brief for any official who leaks information either to a newspaper or to a Member of either House of Parliament. They deserve to be sacked, just as a private employer would sack an employee who behaved dishonourably. That is the right way to do it—not by invoking this oppressive piece of legislation.
Let us remember what Miss Tisdall did. She was a young clerical officer in the Foreign and Commonwealth Office. She leaked to the Guardian newspaper information providing details of the arrival of cruise missiles at Greenham Common. No question of national security was involved. It was a simple question of disloyal behaviour by a junior civil servant. It was a breach of trust. She was prosecuted under the Act and she went to prison for six months.
Then we had the case of Mr. Ponting. Mr. Ponting was a far more senior official; he was an assistant secretary in the Ministry of Defence. If I may say so to my noble friend Lord Hutchinson, I suspect that one of the reasons why he was prosecuted was that, given the fact that a clerical officer had been prosecuted only a few months earlier, it was extremely difficult to find a convincing reason why a more senior official should not be prosecuted under the same section. As a result of that, as we all know, the court, after a fairly prolonged trial of the case, acquitted Mr. Ponting. Like the noble and learned Lord, Lord Denning, I welcome that verdict without any hesitation at all, not because Mr. Ponting behaved admirably—he did not; certainly he did not—but because when, as in that case, it was made quite clear by the prosecution that no question of national security was involved, it was in my view wholly wrong to bring a prosecution under Section 2.
Lastly, there is the case of Miss Massiter and the makers of the Channel 4 programme, "MI 5's Official Secrets". There is not in my view the slightest doubt that some of the allegations contained in that programme raised serious questions of national security. On Monday, the Attorney-General was asked a rather good question in the House of Commons. Having decided to prosecute Mr. Ponting and Miss Tisdall in cases when national security was not involved, he was asked why he had decided not to prosecute in the case of Miss Massiter. It is, I am bound to say, extremely difficult to understand why he 605 took that view. However, what he said, at col. 629 of Commons Hansard on 18th March, was this:As the right honourable and learned Member for Aberavon … would be the first to appreciate, if there were any prosecution, even in respect of just one interception, that would implicitly amount to confirmation of it.I do not think that even begins to deal with the question of why it was decided not to prosecute in the Massiter case but quite right to prosecute in the other two because if he is to be taken seriously it means that any MI 5 officer or any other public servant can now leak information about telephone or mail intercepts secure in the knowledge that there will be no prosecution under Section 2 of the Official Secrets Act. However, it is even odder than that. What about all the other allegations which were made in this particular programme and in the Observer of last Sunday week? The programme and the Observer made the most detailed charges. They disclosed contacts between Ministry of Defence officials and MI 5 relating to the Campaign for Nuclear Disarmament. Those allegations suggested that there had been a cold, deliberate decision to defy the guidelines set down by Sir David Maxwell-Fyfe, which are part of the core instructions to the security service. That programme alleged that a named agent was introduced into the Campaign for Nuclear Disarmament and regularly reported to the security service on its activities.
How can the Attorney-General justify using Section 2 against a young woman junior official when, again, no issues of national security were involved, and decline to prosecute when some of the most serious issues involving the security service were brought into the light of day? I believe there has to be some rational basis for deciding whether to invoke the criminal law. As it is, all that the Attorney-General has succeeded in doing is to demonstrate that the greater the breach of security, the more sensitive the material that is published, the less likely it is that anybody is going to be prosecuted. As I have indicated, I believe that that is the height of absurdity. It brings the law of this country into contempt. Obviously that cannot be the desire of either the Attorney-General or Ministers, but that unsatisfactory situation is going to remain as long as this unwanted piece of legislation remains on the statute book.
§ 7.10 p.m.
§ Lord Mishcon
My Lords, in winding up this interesting and at times intriguing debate on behalf of the Official Opposition, I should like to repeat the thanks that were accorded at the very beginning of this debate to the noble Lord, Lord Wigoder, for having put down the Motion before the House and for having made—as is usual for him—a most interesting speech. We have gone into the history of this Act. We heard just now a most amusing description of how Parliament dealt with the 1911 Bill. From these Benches I could wish that in future we had debates on our Bills which were somewhat midway between what happened on that occasion and what happens so often these days.
However, it has been a most interesting debate because of the number of people who, as is usual in this House, have spoken from their great experience in life, and in many cases specialised experience, in order 606 to help us to have an informed debate. We have heard from distinguished journalists, distinguished editors, lawyers and people with other specialised experience. We even heard from a campaigner in the shape of my noble friend Lord Hatch. They have all contributed to this debate. I regret that those noble Lords who are known as the press Barons were not participators in today's debate. I wish that they could have been present, for I think that they may have had something to contribute. I hope that their absence is not due to their temerity.
The other interesting aspect is that we heard the whole history of how the Official Secrets Act came to be placed upon our statute book. There was one part of the history that was missed out and I want to tell your Lordships about it. It may prompt a smile or, for all I know, a groan from the noble Lord, Lord Hatch. I ought at once to reveal my source in the same way as every editor was called upon to do in the course of this debate. My source was the report of the Second Reading debate of the Bill that was brought forward by the then Conservative Government and which took place in your Lordships' House on 5th November 1979. One of the contributors to that debate was the noble Lord, Lord Goodman, whose absence from our deliberations, largely as a result of ill health, is so much regretted. The noble Lord had traced the origins of the Bill that came forward in 1889, and I now propose, having acknowledged my source, to tell your Lordships about it on this occasion.
There was a newspaper called The Globe, and The Globe had printed that there was a secret annexure to the Treaty of Berlin. A Question was asked in your Lordships' House of the then Foreign Secretary, Lord Salisbury, as to whether indeed there was a secret annexure to the Treaty of Berlin. The Foreign Secretary denied any such secret annexure. There was a civil servant, a junior clerk in the Foreign Office, who, having obtained a copy of the secret annexure, made a further copy of it on his own paper. That is a relevant factor in the story that I am relating to your Lordships. He then took the copy that he had made on his own paper to The Globe, and The Globe published it.
Those who advise Governments upon matters of law were then forced to do some research to see with what the junior clerk in the Foreign Office could be charged. In the genius that always pervades my profession, the answer came: "larceny of paper". He was thereupon charged with having stolen the piece of paper upon which the secret annexure was implanted. I must tell your Lordships that upon the learned counsel who appeared for him proving that the paper was his own, he was duly acquitted. It was upon that firm basis of the lacuna in the law that the first Official Secrets Act was passed by Parliament.
Having disclosed the origin, the noble Lord, Lord Harris, has given us a most amusing account, at second hand, of what really occurred upon that occasion and of the way in which the 1911 Bill was rushed through. He has also done something which is unforgiveable. I had kept the quotation from Mr. Leon Brittan hidden from all my friends so that they would not quote it. I had thought that I had kept it as an official secret from everyone else in this House. It was therefore to me, a matter of actual criminality that the 607 noble Lord disclosed that all-eloquent quotation from the speech of Mr. Leon Brittan. I invoke it in aid on this occasion because it obviously made it so much easier for the noble Lord, Lord Elton, to accept this Motion, for it seems that in the Secretary of State he has a fervent supporter of the idea that legislation to repeal Section 2 ought to be with us, and that there ought to be a sensible piece of legislation to replace it.
However, in order that the noble Lord the Minister can go properly armed not only with the report of what appeared in the parliamentary columns of The Times on that occasion, I should like to help him by reminding him of what the noble and learned Lord the Lord Chancellor said in the debate on 5th November 1979 when he introduced the Second Reading of the Protection of Official Information Bill. I am reading from Hansard, col. 608 of our deliberations, of 5th November 1979. I am not going to emphasise the relevance of the date. The noble and learned Lord said:Unless I am mistaken it is now nine years since a judge said"—I almost thought that those words were the origin of the opening words of the speeches of the noble Lord, Lord Wigoder, and the noble Lord, Lord Huchinson, when they traced what had happened, with no action. The noble and learned Lord said: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".The noble and learned Lord was then so much kinder than some of those who have spoken from the Alliance Benches and who have not had, as yet, the responsibility of Government, because he said:It is no criticism that successive Governments, sailing under different political colours, have failed so far to achieve this purpose".Therefore, as a result of the debate which has been held in our House this afternoon and which has had some public exhibition—I hope meritorious exhibition—and as it appears that the Government have accepted this Motion, it is unnecessary for me to repeat what has been so well said in previous speeches, and it just remains for me to say that Section 2 ought to find itself with a decent burial at long last.
One then comes to the second part of the Motion; namely, what is to replace it? I was so interested, as were all of your Lordships, in the speech of the noble Lord, Lord Maude, and not only because we respect him so much as well as his very fine political career, but also because he spoke as somebody who has contributed a great deal to journalism in this country. I remember so well that he said that there was a conflict that ought to be resolved in this country with those who kept on demanding rights instead of appreciating that they had duties. Duties obviously involve rights. If there is a duty, as he suggested, that Governments should disclose information which is relevant to the public having the right to make up their minds on policies, equally the public have a right to be on the receiving end of information which is about them individually in Government files. This was a matter discussed so recently in the Data Protection Bill, which the Government rather reluctantly brought before Parliament as a result of being pushed towards it by EEC legislation and requirements.
608 Therefore, you cannot have duties without consequential rights. It is only sensible that this cancellation, this revocation of Section 2, should be replaced by legislation which creates, as it must, a criminal offence where information is in fact wrongly imparted which hits at the very security of this country; but that must also be accompanied by legislation which deals with the duty to impart information which should, as a matter of public right, be imparted.
There are many of us who would definitely follow the line taken by the noble Lord. Lord Allen of Abbeydale, that one has to be so careful to see that what one replaces it with is not in fact a greater danger than the removal of Section 2. He made his position perfectly clear. He has to make no apology to me for not having been clear in what he said, but I am glad that that point was made very clear later in this debate.
I see no reason at all to prolong these deliberations. We have had a most interesting debate. I hope it has without any doubt meant that the Government must now act, and act speedily, at least to bring a Bill before us, or proposals before us, for discussion. I would not even mind a further White Paper, or Green Paper, in the long succession of papers, but in the knowledge that we shall act upon it. I noted, as did other noble Lords, the gracious acceptance of this Motion by the noble Lord, Lord Elton. I know that when things are accepted by him action follows. We all look forward to it on this occasion.
§ 7.23 p.m.
§ Lord Elton
My Lords, I have listened with close and, indeed, at times, fascinated attention to your Lordships' discussion of the Motion which the noble Lord, Lord Wigoder, has so fruitfully put on the Table today. I am indeed grateful to him for drawing forth your Lordships' comments, as well as for the clear exposition of his own position and that of his party on this matter.
Your Lordships did not surprise me by being almost entirely against Section 2. A general criticism is that it is far too wide in its scope. It is a catch-all section that could make it an offence to reveal the most trivial of information, notwithstanding the doctrine of implied authorisation quoted by the noble Lord, Lord Allen of Abbeydale, with the authority of a former Permanent Secretary of the Home Office.
We, too, would prefer to see a narrower definition of the information protected by the law, but how is this to be achieved? Section 1 on its own will clearly not suffice. It covers the improper disclosure of confidential information for any purpose prejudicial to the safety or interests of the State where that information is likely to be useful to an enemy. But very serious damage can be done, of course, by the disclosure of official information in circumstances which fall well short of that test. For example, if an officer, without any mischievous purpose whatsoever, fails to take reasonable care of top secret information which is then released, bearing in mind the gravity of the damage which can be caused thereby, I think most people would agree that such conduct must be addressed by the criminal law.
§ Lord Harris of Greenwich
My Lords, I apologise for intervening so early, but may I press the noble Lord on that particular example? It will be within the recollection of a number of us that a few years ago a senior member of the Cabinet made a mistake and left highly confidential Cabinet documents in a London restaurant. I can recall no suggestion that he should be prosecuted under any section of the Official Secets Act.
§ Lord Elton
My Lords, the noble Lord, Lord Harris, is always skilled with his interruptions and the presentation of an almost relevant, or totally irrelevant, individual case, and I am almost as good in my footwork at dodging the issue. But on this occasion I would say that, regardless of the merits of the particular case, even the noble Lord, Lord Harris (who, having been a Minister, no doubt feels deeply for the Minister who found himself in that position), would agree that there must be a power to prosecute and that there must be an offence committed by somebody who negligently exposes sensitive material to people who could use it to damage the state. I am in no position to comment on this particular case, with which I am not familiar.
That being so, we must address ourselves to this question: if Section 2 is repealed, what must be added to Section 1 to complete the minimum necessary protection? I did not expect that there would be agreement about that, and a number of somewhat different answers have been put forward this afternoon. What we have been looking for is a reliable test to apply information to see if it is, or ought to be, protected by the section, or left outside it. Lord Wigoder's test is on the Order Paper. It is "serious national harm", which I am sure, if it is permanently adopted, will rapidly become "SNH" in the jargon of lawyers. The section, or Act, would have to contain a list of classes of information, the release of which could cause SNH and which would therefore be protected by the provisions of the Act.
We are debating a Motion of general intent and not testing the precise effect of detailed drafting. On those terms I have no quarrel with the noble Lord's wording. If he were to get to the stage of drafting a Bill, on the other hand, we would have to subject it to a much more rigorous test. It certainly then could be argued that the unqualified term "serious national harm" was defective in either of two contradictory ways. The first would be that it was so loose in meaning as seriously to weaken its value in limiting the information to be protected. The second would be that on a strict interpretation it could restrict the effect of the section to something not only narrower than the existing Section 2 but very much narrower even than what was recommended by the Franks Committee, by the last Labour Government, and by our own Protection of Official Information Bill. Each of these made provision, after all, for the protection, among other things, of confidences of the citizen and for safeguarding law and order.
It is possible to argue—and noble Lords have argued—that these more general protections should consist merely of an absence of an absolute right of access and be provided by some other means such as that suggested, but not described, in the second part of 610 the Motion. Our view is that these matters ought not to be left out of the legislation which protects official information.
We then come to the nature and extent of that legislation. A further question which would need to be addressed is: who should decide whether information fell within those categories which were to be protected once we had decided? The Protection of Official Information Bill, for example, proposed that a certificate by the Secretary of State should be conclusive evidence that the disclosure of information in the defence or international relations categories would have been likely to cause serious injury to the interests of the nation or endanger the safety of a United Kingdom citizen. This attracted a good deal of criticism. Your Lordships heard the noble and learned Lord, Lord Elwyn-Jones, repeat it most forcefully this afternoon.
An alternative remedy which is sometimes proposed is to leave the degree of harm to be demonstrated to the jury as a necessary part of the prosecution case. I think that that was in effect what the noble and learned Lord, Lord Elwyn-Jones, was enjoining us to do. There may also have been shades of such a suggestion in what the noble and learned Lord, Lord Denning said when he congratulated the jury in the Ponting case. But I wonder whether that is entirely wise, for it would not leave the individual in any more certain or safe position than he now is.
Precisely what information should be protected and who should decide what information might, to use the words of the Motion "cause serious national harm", are familiar questions. Those were the twin rocks on which the Protection of Information Bill foundered and which lie in the path of any fresh attempt. Experience suggests that it is far from easy to find a passage between these two hazards which is wide enough to allow a sufficient body of opinion, including that of the Government, to remain on board. We shall certainly wish to consider carefully whether any of the various solutions suggested by your Lordships might provide the basis for a further attempt at legislation.
Remembering that we had the courage to take on what my right honourable friend the present Home Secretary described as the strenuous rearguard action of Whitehall (and, I would remind the noble Lord, Lord Harris of Greenwich, we overcame it), it was the strenuous resistance of people like the noble Lord himself and others closer to our own point of view that brought us to a halt in this progress.
The noble Lord, Lord Hams, will not dispute that Section 2 of the Official Secrets Act is imperfect, and nor do I, but I am not certain that the general principle which he sought to adduce from it—that the greater the breach of security the less likely is a prosecution—necessarily flows from its shortcomings or can easily be avoided. It is simply an inescapable fact that one cannot prove that the unauthorised disclosure of information has taken place without also revealing whether the information is genuine, whether it is true or whether it is simply an invention. This in itself can be extremely valuable information to others. This is an awkward and an unwelcome point, but I think your Lordships' House may prefer the illness to the remedy in this case. That is the sort of difficulty with which we have to deal in coming to a conclusion on this matter.
611 As I think we should turn to some general issues, I shall mention some of the queries and criticisms raised in this debate. I listened most carefully to what my noble friend Lord Maude of Stratford-upon-Avon said about the decline in journalistic standards. I noted also the interests of the noble Lord, Lord Grimond, in this matter. I am afraid that it may be the case that if governments cannot trust civil servants to respect their confidences, if journalists cannot be trusted to behave professionally, we may be driven to less open rather than the more open government to which we are moving at the moment. But I believe that the Civil Service generally has high professional and ethical standards. I do not think the threat from that quarter is as serious as some may think.
The noble Lords, Lord Hutchinson of Lullington and Lord Hooson, suggested that my noble friend's analysis of what happened was wrong; that it is, on the contrary, excessive secrecy that breeds leaks and not leaks that breed secrecy. It appears, therefore, that I apparently have not done enough to display the considerable increase in openness of Government that we have brought about since 1979.
I am genuinely surprised that the noble Lord, Lord Hooson, can still suggest that this is an obsessively secretive Government. If we were really trying to be secretive one would only have to look at the pages of Hansard to see that we are failing dismally, more dismally than any preceding Government, in our objective of being secretive. Did this Government not help to set up the powerful new departmental Select Committee of another place? Their terms of reference are to examine the expenditure, administration and policy of the principal Government departments and associated public bodies and they are now examining a wider range of Government activities in greater detail and drawing out a wider range of Government information than at any previous time. If the noble Lord, Lord Hutchinson of Lullington, can describe that as a "thin trickle of information on the mountainside of secrecy" I wonder whether he has read the voluminous products of those committees. I should perhaps add in this context that it is well understood that civil servants who give evidence to these committees do so on behalf of their Ministers. Ministers are ultimately responsible for deciding what information should be given to Parliament and its Select Committees and for defending their decisions as necessary. That has nothing to do with Section 2 of the Official Secrets Act. It has to do with the relationship between civil servants, Ministers and Parliament. If Section 2 disappeared tomorrow that would still be the position.
It is for Ministers to decide what information should be released, but we have promised that time will be found for a debate on the Floor of the House of Commons should there be evidence of widespread concern over disagreement between a Minister and a Select Committee on what should be revealed. With these committees and this undertaking, we have given the House of Commons a heavy procedural stick with which to beat the Government if they clam up on disclosable issues. My experience of private Members of both Houses, I have to say to my noble friend Lord Maude of Stratford-upon-Avon, is not that they are 612 reluctant to complain about a letter. If I write a letter that is a shade less good than it should be I get something back pretty sharply. I do not wish others of your Lordships to copy this behaviour because my post is more than I like already.
We have naturally heard a good deal during the course of the debate this afternoon about the cases of Mr. Ponting, Miss Massiter and Miss Tisdall. It would not be right for me to comment on the Attorney-General's decision to prosecute and the noble Lord, Lord Harris, has already quoted my right honourable and learned friend. Nor can I follow the noble and learned Lord, Lord Denning, in expressing an opinion on the verdict of the jury. The essential question today is: what general conclusion can be drawn from the case for the shape of any future Act? Obviously Parliament would have to face such questions as whether the sort of information which Ponting revealed should be within the scope of any revised Section 2, whether there should be anything in the nature of public interest defence and who should determine what information fell within the categories and where the accused's duty lay? No doubt, by the time Parliament addresses these issues there will, regrettably, have been other cases, so I think I should do better to address the general issues rather than the particular cases.
That brings me to the noble and learned Lord, Lord Elwyn-Jones, who referred to the experience in the United States with its Freedom of Information Act. Others of your Lordships have referred to the Freedom of Information Acts of other countries. I am constantly being reminded in this House at this Box that even the laws of Scotland differ so much from those of England that I must not in any circumstances argue from their experience for the purposes of our legislation. I say that to noble Lords who made this point to me. That argument must surely apply with even greater force in the case of other countries. The noble and learned Lord, Lord Elwyn-Jones, quoted the American experience with enthusiasm. However, I shall read his comments with interest but with some skepticism, for, even if we could argue from that experience, I should have to remind your Lordships that the American system appears to cost about £60 million a year to run and that legislation in the Commonwealth countries has been in place for far too short a time for us to draw any sound conclusions from it.
The noble Lord, Lord Wigoder, in his closing paragraph cited a number of matters in which he felt official information was needlessly withheld. He referred to the environment. We have made clear that we want to see much greater openness in environmental matters. There are, as your Lordships will recognise, genuine dilemmas and practical problems in providing for complete openness. I doubt whether a requirement of complete openness could really protect the public because there would be far too great an incentive amongst the polluters to conceal; but, as we announced in our reply to the Tenth Report of the Royal Commission on Environmental Pollution, we are setting up a working party to see how a presumption in favour of openness in this area can be made to work more effectively, so we are with the noble Lord there.
I did not follow the noble Lord's interest in library 613 books in prisons. There is no secret about that. They are provided by the local authority under an arrangement by which we reimburse them on a cost-plus basis. There is a turnover of stock and I am sure any library committee of a local authority would be pleased to tell the noble Lord what books they were putting in.
My noble friend, Lord Maude of Stratford-upon-Avon, speaking with considerable authority, having been at the spearhead of the move to more open government when we came to office, has said that rights and duties should balance each other; and the noble Lord, Lord Mishcon, supported him in this philosophy. To put it more precisely, my noble friend suggested that we should tackle the need for more information not by giving a general right to know, but by putting a duty on Ministers to reveal a great deal more information; and he suggested that we might consider a code of practice.
My noble friend will be aware from my opening speech that we are under this duty. I am sure he remembers the duty being laid on us in 1979 by the Prime Minister. We have the same Prime Minister and we now have a great deal more public information; but he has suggested a code of practice and of course I shall take that to my right honourable friend for consideration as a constructive suggestion.
I said most of what I wanted to say to the noble Lord, Lord Hatch of Lusby, in the 30 seconds or so of my intervention during his speech. He has used this debate to make serious allegations. I shall pass them on, with a longish pair of tongs, to those at whom he directed them and who, I repeat, had no opportunity to reply to them in a debate which I shall not assist him in turning into a debate about his obsessive interest in one set of recent events. He may, however, find it helpful to know that my right honourable friend the Secretary of State for Defence has personally given evidence to the Select Committee on Foreign Affairs, again a Select Committee, an instrument of discovery. The Government have answered all the Committee's question and have given the Committee access also to the highly classified chronology prepared by Mr. Ponting now known as "the crown jewels".
However, this is not a debate about the "General Belgrano": it is a debate about Lord Wigoder's Motion and that consideration also incidentally prevents me responding to a good deal of what was said by the noble Lord, Lord Jenkins of Putney, or what was said by the noble Lord, Lord Harris of Greenwich, who I believe at one point followed him in discussing the way in which the security services carry out their duties.
I would wish to comment on the reference—this is the point at which I wish to rope in the noble Lord, Lord Harris of Greenwich—to the 20/20 Vision television programme. To that I feel I should say first that the Independent Broadcasting Authority requested Channel 4 to withdraw the programme after being advised by counsel that to broadcast it could be a criminal offence under Section 2 of the Act. As the authority has explained, it took the decision on grounds that, as a statutory body responsible to Parliament, it would be improper of it knowingly to commit an offence. Decisions on matters of 614 programme content and accessibility are for the broadcasting authorities alone with due regard to their formal responsibilities; and the Government do not seek to interfere in or influence such decisions. As to the content, in case noble Lords also do not know that, I will say that the noble Lord, Lord Briggs, the judicial monitor of interception arrangements, has conducted, at the request of the Prime Minister, a full and detailed inquiry into the allegation made in the programme that authority for interception was improperly sought and given in relation to the persons named in the programme. The report, which was made public on 6th March, completely refutes these allegations.
The noble Lord, Lord Grimond, addressed himself amonst other matters, to the Lobby system. Successive governments have used that system as one means of communication about what Government are doing. It is not the only means and indeed it is not the most important means; but I believe both governments and the press have found it useful to have this kind of briefing from time to time. Of course, no editor or journalist is under any obligation to attend the Lobby if he does not want to. The Lobby works under clearly understood conventions. It puts no one outside either the law or the bounds of normally acceptable behaviour. The noble Lord, Lord McGregor of Durris, the noble Lord, Lord Ardwick, and some other supporters of the press are right. Of course they are right to say that the press must find out as much information as possible and put it before their readers; but that does not put them above the law, and journalists under law must, of course, be subject to the same laws as the rest of us and have a code of ethics.
§ Lord Elton
My Lords, I intend no discourtesy to the noble Lord, but it is the convention of this debate that one has one's say from either side. We are also on a strict timing. I have three minutes left of my ration and the noble Lord will forgive me—and I am sure the noble Lord will correspond with me. If I find before he writes to me that I have misinterpreted what he said, I shall write to him before he writes to me.
The noble and learned Lord, Lord Wilson of Langside, reminded us very kindly that we must not confuse disciplinary and criminal aspects of breaches of confidence by civil servants, but some criminal sanction must surely be available. We accept that there are deficiencies in Section 2 of the Act. It provides a catch-all offence, which means heavy reliance upon selectivity in its use. We had a shot at putting it right in our Protection of Information Bill but there was not enough agreement with our proposals for the Bill to get through. Our mind is not closed and we can accept the first part of the Motion, not as a commitment to legislate, as I think the noble Lord, Lord Mishcon, sought to tempt me to say, but as a commitment first to take careful note of the views which have been 615 expressed both in this Chamber and elsewhere and then to consider whether there appears to be any measure of agreement in which the Government could join in the light of their own particular responsibilities and which might form the basis for a further attempt at legislation.
What we cannot do, as both the noble Lords, Lord Allen of Abbeydale, and my noble friend Lord Beloff, with all the vigour of a clear-eyed patriot, have pointed out, is to scrap the section until we have something to put in its place; and it is an essential point because the Act is an essential protection, as perhaps nobody could have pointed out with more authority than my noble friend the Duke of Portland, who spoke with the authority of an ex-Chairman of the Joint Intelligence Sub-Committee of the Chiefs of Staff—a post which I believe he held throughout the whole of the last war. He understands these matters.
We do not favour legislation, either, to introduce a general right of access to Government information. That does not mean that we are not in favour of greater access to information where this makes sense. Again, we shall consider what your Lordships have said with very great care. If there are ways of improving our system, then we will certainly consider them. I believe I have left the noble Lord, Lord Wigoder, just a sliver of time in which to conclude.
§ 7.50 p.m.
§ Lord Wigoder
My Lords, by my calculation I have some 16 minutes at my disposal but your Lordships need not be too disturbed. I do not propose to occupy all of them by a very long way. When this debate began, I said that I hoped that in the course of it a consensus might develop. I believe it has. I believe that the overwhelming majority of the speakers have, some with their reservations, some with their modifications, supported the general principles laid down in this Motion.
I am grateful to those noble Lords who expressed their support in that way. That does not mean that I am not also grateful to those who have had more serious reservations, and particularly for the doubts expressed so constructively by the noble Lords, Lord Maude of Stratford-upon-Avon and Lord Allen of Abbeydale. I appreciate, too, the points made by the noble Duke opposite. I sympathise with those and I blame myself for not making the position clear when this debate began. May I assure the noble Duke that none of us who advocates in a responsible way greater access by the public to official information is suggesting for one moment that that should include information which might prejudice the safety of the Realm.
I listened, too, with interest of course, to the pungent speech of the noble Lord, Lord Beloff. I gather that his next book is apparently to be entitled, "The Effect of the Increase in Access to Official Information on the Progress of the French Revolution". And I have no doubt that it will be a best-seller.
I am grateful, finally, to the noble Lord the Minister for the way in which he has responded to this debate. He made it clear when the debate began that on behalf of the Government he was not resisting this Motion. 616 For that, too, I am grateful. He has raised a number of points and it would be quite wrong at this stage to reopen the debate and deal with them in turn.
Perhaps I may mention two of them very briefly. One is that he mentioned the fact that the words "serious national harm" are used in this Motion. They are used there only as a sort of shorthand. It is not intended that they should be a blueprint for legislation. I would hope that the Government, in order to consider the appropriate legislation, might think of going back to the Franks Committee Report and looking at it in a spirit of generosity rather than a spirit of increased repression, which I think marked their last attempt in October 1979.
The other matter he raised was how it was to be determined whether documents were properly classified or not. There is a problem in letting the Minister be the final authority on that, as he will realise; there is a problem in letting the courts be the final authority on that, as also he will realise. I doubt whether it is really a justiciable issue. May I merely put into the pool the possibility that that matter should be considered by a Joint Select Committee of both Houses of Parliament, which would help I think to increase parliamentary accountability of the operation and would very much assist therefore in that respect.
The noble Lord the Minister having said that he would not resist this Motion, I propose nevertheless to move it. I propose to move it because I believe that to pass it would be worthwhile. It would be appropriate that it should be recorded as the view of your Lordships' House and it will then stand on the record as a constant reminder to the Government of the need for pressing action. In those circumstances, I beg to move.
§ On Question, Motion agreed to.