§ 2.52 p.m.
§ Lord MolloyMy Lords, I beg leave to ask the Question standing in my name on the Order Paper.
§ The Question was as follows:
§ To ask Her Majesty's Government what authorisations are required to protect civil servants from prosecution under Section 2 of the Official Secrets Act 1911 in the event of publication by them in whole or in part of classified documents to unauthorised persons.
§ The Lord Advocate (Lord Cameron of Lochbroom)My Lords, the relevant offence under Section 2 of the 1911 Act consists of the communication by a person who posseses information or a document by virtue of his official position to a person to whom he is not authorised to communicate it. If he is so authorised, no question of protecting him from prosecution arises: he has committed no offence. What constitutes authorisation in any particular case depends on the circumstances of that case.
§ Lord MolloyMy Lords, is the noble and learned Lord aware that that Answer confuses the issue more than ever, and that it is now totally perplexing? Is the noble and learned Lord further aware that, because this matter was brought to the forefront in the Westland issue, masses of ordinary people up and down the country, including lawyers and skilled parliamentarians, cannot understand why it is possible for someone to leak a letter from the Solicitor-General without him knowing it and be given a private assurance by another Minister that if they committed this act, which seems to be an offence, they would be covered for it? Would he not agree that this is disturbing right through the ranks of Parliament and the country in general?
§ Lord Cameron of LochbroomMy Lords, I would not accept the suggestion which is made by the noble Lord. The section is quite clear, and I have given an explanation about it. So far as the question of immunity is concerned, my right honourable and learned friend the Attorney-General made quite clear what the position was about that, and, indeed, my right honourable friend the Prime Minister made the matter even clearer in her Statement of 23rd January in another place. I should have thought that that would have been quite sufficient to allay any such fears as those suggested by the noble Lord just now.
§ Lord Cledwyn of PenrhosMy Lords, in the debate on the Official Secrets Act last March the noble Lord, Lord Elton, said—and I think I quote his words accurately—that Section 2 is imperfect. In view of that and of the general public concern about this section of the Act, can the noble and learned Lord say what the Government have done in the meantime to introduce an amendment or new legislation to deal with a matter which is of acute public concern?
§ Lord Cameron of LochbroomMy Lords, I think that what the noble Lord opposite has said was a matter of concern which was placed before Parliament in the Session of 1979–80. The difficulty has always been to find another broadly acceptable measure which defines the information which genuinely needs protection from disclosure. Indeed, my right honourable friend the Prime Minister, when questioned about this matter on 14th January in another place, made clear that an attempt had been made to amend the Act. There had been considerable debate on the matter, and although many people wanted change there was no agreement on what those changes should be.
§ Lord MolloyMy Lords, is the noble and learned Lord saying that it is not possible whatsoever to tell a Cabinet Minister or any other Minister about shielding civil servants who wish, at his or her desire, to leak information to the public press? Does that also apply under the Official Secrets Act to a highly sensitive defensive issue which could be of use to a foreign power—that, provided that civil servant is guarded by a Minister, all will be well and there is nothing to worry about? That is what the general public are asking.
§ Lord Cameron of LochbroomMy Lords, I do not think that the general public are asking that question. 822 So far as concerns the issue which the noble Lord raised earlier, my noble friend the Leader of the House made quite clear to your Lordships in a Statement which was being delivered in another place by the Prime Minister that the Attorney-General had authorised the Prime Minister to say that, after consultation with and the full agreement of the Director of Public Prosecutions and senior Treasury counsel, he had decided that there was no justification for the institution of proceedings under the Official Secrets Act in respect of any of the persons concerned in the matter.
§ Lord Hutchinson of LullingtonMy Lords, would the noble and learned Lord tell the House whether in this Administration press secretaries who are journalists have the power to authorise breaches of the Official Secrets Act? In the Westland matter, the civil servants in the DTI told Sir Robert Armstrong that they sought, and thought that they had, the authority of the Prime Minister's press secretary to breach the Official Secrets Act. If they do have this power, will he tell the House where it comes from and' how it can be reconciled with the constitutional principle of ministerial accountability?
§ Lord Cameron of LochbroomMy Lords, with due respect, that seems to be going beyond the scope of this particular Question. I merely say that my right honourable and learned friend the Attorney-General said in another place on 3rd February in relation to the issue of prosecution of Mr. Bernard Ingham that, after consultation with the Director of Public Prosecutions and senior Treasury counsel, he took the view that his published guidelines would not be fulfilled by any prosecution.
§ Lord Hatch of LusbyMy Lords, can the noble and learned Lord explain more fully to the House and clarify his use of the word "authorisation"? Is he saying that a Minister may order his civil servants to break the law and that in that case neither the civil servants nor the Minister have breached Section 2 of the Official Secrets Act? What is the force of this word "authorisation"? Is it authorisation to break the law; and, if so, is it not the Minister who should be prosecuted under the Official Secrets Act?
§ Lord Cameron of LochbroomMy Lords, I make it quite clear—and I thought that I had done so in the opening response which I made to the Question—that what constitutes authorisation in any particular case depends upon the circumstances of that case. I cannot go beyond that matter. That is a matter which any lawyer would fully understand.