§ 11.30 a.m.
§ The noble Earl said: My Lords, the subject of official secrets has come before your Lordships twice in recent months. On 20th April my noble friend Lord Bethell introduced a Bill to reform Section 2 of the Official Secrets Act 1911, and on 29th June I repeated a Statement which was made by my right honourable friend the Home Secretary in another place to mark the publication of the White Paper. Today gives us a third opportunity to debate the White Paper itself.
§ We shall have the particular and rare pleasure of hearing the noble Lord, Lord Armstrong of Ilminster, make his maiden speech. His experience in this matter is, if not unique, certainly substantial. We welcome the noble Lord and we look forward to his speech not only for what it will contain but because of who will deliver it.
§ Your Lordships' initial reaction to the White Paper might, I think, be fairly described as cautiously welcoming. I hope, now that your Lordships have had an opportunity to read and reflect on its contents, that that view will be maintained. The 497 White Paper is, as your Lordships know, a precursor to legislation. The Government have stated that we wish to clear up the unsatisfactory position of Section 2 of the Official Secrets Act, whose main claim to fame is that everyone seems to think that it is wrong. We have put our proposals out, therefore, in the White Paper. We are anxious to get the legislation right when it is introduced, and we are open to constructive criticism on how this can best be achieved. The debate today will give your Lordships the opportunity of giving your views on our proposals before they come forward in a legislative form.
§ We believe that our proposals are reasonable and will be effective. They are based on lengthy consideration of all the issues, and of the criticisms which have been made of the present system. Our minds are not closed, and we shall study very carefully the views which are expressed today—and elsewhere—before legislation is introduced. I would be surprised if your Lordships were to agree on every detail. I think that that would be asking too much. We must be clear about one thing. If we are not to have a reasonable measure of agreement, then we shall get no reform. If people at both ends of the spectrum of opinion were to pursue their views with unbridled determination, the result would be that no legislation will get through Parliament and the unsatisfactory status will be obliged to remain, with all the frustrations which that produces. I hope, therefore, that your Lordships will see the White Paper as a foundation for reform and that the House will agree that the time has come to deal with Section 2 effectively and permanently.
§ It may assist the House if I try to summarise the essential principles which underlie the Government's White Paper. The proposals, like Section 2, are concerned with the disclosure of official information which has been made without authority. We are speaking about information which has been in the hands of a Crown servant or a contractor. We are not, of course, dealing with information which has been in those hands but which has been disclosed with authority—of which, of course, there is a great deal and which, ipso facto, means that it is not an official secret. Indeed, I take a certain pride in the fact that this Government make a great deal more information available both to Parliament and the public than have done any of their predecessors.
§ Our central objective is to try to reduce the scope of the criminal law so that it will prohibit only those unauthorised disclosures of official information which would be likely to cause an unacceptable degree of harm to the public interest. We intend to restrict the proposals only to those areas of information—and there are six in all—where we believe disclosures may cause such harm. These are security and intelligence; defence; international relations; interception of communications; information useful to criminals; and information obtained in confidence from other governments or from international organisations.
§ In two of these areas—the interception of communications and information which is obtained in confidence from other governments and international organizations—we consider that any 498 unauthorised disclosure would be likely to cause unacceptable harm to the public interest. In a third—information which is likely to be useful in the commission of offences or in the escape from lawful custody—those disclosures are, by their very definition, harmful. But in the other three categories—security and intelligence, defence and international relations—we do not believe that every disclosure would be likely to harm the public interest. Some will; some will not.
§ In our 1979 Bill, which followed the line of the Franks Report and the Labour Government's 1978 White Paper, we said that it should be the Minister who decided whether the public interest would be likely to be harmed. That pulled down a holocaust of dissent around us. We no longer take that view. We have been persuaded that, both in principle and in practice, it is right that this issue—the issue of deciding whether or not a particular disclosure would be likely to harm the public interest—like any other issue, should be placed before a jury. It is our intention that the prosecution should have to prove that the discloser knew, or had cause to believe, that harm was likely to arise. That would be so in all cases other than those which involved Crown servants or government contractors, where the burden of proof would be reversed. In other words, it would be assumed that the Crown servant or government contractor knew that the disclosure would be likely to cause harm. If he did not, he would have to prove it.
§ Of course, there are risks in what the Government are proposing. But we believe that the risk is worth taking, and that it is right that we should take it. In order to allow juries to decide whether an unacceptable degree of harm is likely to arise from an unauthorised disclosure in one of these categories, we propose to define that harm. It seems to us that the harm which may arise is not the same for each category. The White Paper therefore proposes a separate specific test or tests for each category. I emphasise that our objective so far has been to define only the nature of the harm for the purposes of the White Paper. We shall need to look carefully at how we translate what one might call "White Paper language" into what one might call "Bill language".
§ There are some who have read into our proposals more than we have intended. For instance, it has been suggested that we are attempting to lower the threshold of the offence below that which was proposed by the Franks Committee; namely, that of "serious injury to the interests of the nation". That is not so. Under the Franks proposals, the Labour Government's White Paper and our 1979 Bill, all of which used the test of serious injury for some categories of information, the meaning of those words was considered only by the Minister.
§ Those words will not do for our purposes because they are too vague to form the basis of a criminal offence which has to be proved beyond reasonable doubt to a jury. What we have tried to do is to define when harm to the public interest reaches a level which is sufficiently serious to merit a criminal sanction. Our answers are set out in the White Paper at some length, and I think that it would probably be more appropriate if I were not to go into them in detail here.499
§ I would make something of the same comment on the six categories of information which I mentioned earlier and which our proposals seek to cover. The descriptions which we offer are, I think, adequate for our present purposes of discussion. But when we come to legislation obviously some refinements will have to be made in order to put the description into more legal language. We shall need to define the categories in a way which ensures that the new legislation will only bite upon harmful disclosures and not harmless ones, but that it does so effectively.
§ For one of the categories which we propose should carry tests of harm, we make a distinction depending upon by whom the disclosure is made. That is the category of information which relates to security or intelligence.
§ In the case of disclosure by members or former members of the security and intelligence services we propose that it should not be necessary for the prosecution to prove that harm was likely to arise. We believe that all such disclosures are harmful. We have set out our arguments for that view in the White Paper. I do not intend to say anything more about those categories of people because the arguments speak for themselves, except that what we propose is no more than to leave the present situation essentially untouched and not to impose new restrictions.
§ But we also propose that certain people should by means of a ministerial designation share the same criminal liability as members and former members of the security and intelligence services. That proposal has afforded some scope for misunderstanding, and I should like to offer a little clarification and, I hope, some reassurance to the House.
§ First, the intention is that a person will be designated only if his post involves working so closely with one or more of the services that he has almost the same knowledge as a member of the services of how they are organised and of the work which they are doing.
§ Secondly, designation will take effect only when the person concerned has been individually notified. There is no question of any person being unaware of his liability. Nor is there any question of a person being designated retrospectively. Each designated person will be subject to this special liability only in respect of the information which relates to security and intelligence and which he acquires after he has received his notification of designation. if the House has any misgivings about the effect of this or of any other of the Government's proposals there will of course be an opportunity to examine them more closely when the Bill comes before your Lordships.
§ I have given your Lordships an outline of our proposals, the principles on which they are based and the objectives which they seek to achieve. A number of issues have been raised since the White Paper has been published. Some relate to what is in our proposals; some to what is not. Rather than try to deal with all of those points, I thought that it might be more to the convenience of your Lordships if I were to listen to the views which noble Lords wish to express and attempt to answer some of the points at the end of the debate.500
§ I conclude by renewing the Government's commitment to early legislation to reform Section 2. It is right that we should consider carefully the nature of that reform. Parliament has been considering various proposals for reform since at least 1972. After 77 years of legislation. about which nobody seems to have much that is complimentary to say, it is time to put something better in its place. I hope that in expressing that sentiment the whole House will agree with me. I beg to move.
§ 11.44 a.m.
§ Lord Elwyn-Jones
My Lords, the House will be grateful to the noble Earl for opening this debate. The long and distinguished list of those who are to speak is an indication of its importance, presaging as the White Paper does the proposed introduction of legislation in the vital but difficult field of official secrets.
We all look forward to the maiden speech of the noble Lord, Lord Armstrong of Ilminster, who has been a distinguished public servant for many years and is well known to many of us as a colleague in the work of government. He has been in the eye of the official secrets storm. During all the time that that storm has raged and he has been at the centre of it he has visited almost all parts of the world; following him has been a dizzy process indeed. It is not surprising that I gather that he took part in the programme "Desert Island Discs". Whether or not that presages his mood I know not. Clearly his speech will be of great interest to the House and we shall be fascinated to see to what extent he manages in the circumstances to maintain the customary non controversial posture during his speech, a posture which it must be admitted is not adhered to by all maiden speakers.
The speech of the noble Earl who opened the debate was pleasing in its indication that the Government's mind is not closed. A study of the White Paper shows that there is a massive amount of rethinking and work still to be done before legislation is introduced in this difficult field. We welcome the abandonment of the finality of the Secretary of States' certificate that a given disclosure is a breach of the Official Secrets Act, and I assume that we have heard the last of that proposal.
I think that in an area of public policy in which there is bound to be a good deal of disagreement we can agree about two major matters. The first is the need to keep secret material that even might be of real benefit to an enemy or a potential enemy. Secondly, we are agreed upon the need to remove from the provisions of the Official Secrets Act the catch-all Section 2 which, as the House knows, makes it a criminal offence to disclose or receive any official information at all without prior authorisation.
I regret however that that proposed reform has not been made part of a much wider package extending the range of information about public affairs. The White Paper frankly admits in paragraph 5 that it does not address such matters as public access to 501 official information not covered by the Government's proposals. That is a separate issue which it is claimed does not arise directly out of reform of Section 2.
The White Paper goes much wider than that and proposes the creation of a powerful and new secrecy law. What I submit the White Paper does not do is to provide a balance between consideration of the need to protect certain information, on the one hand, and the rights of free expression, for people to be informed and for the press to print the information, on the other. I believe that the public interest in the right to know has rarely been as strong as it is now. Unhappily, nothing in the White Paper will reduce official secrecy; on the contrary, we fear that its proposals greatly increase it.
I think that there is also a growing feeling among the public and in the House about the requirement and the need for parliamentary accountability through some machinery which will have to be devised—perhaps a committee of Privy Counsellors on the way the secret services work. My right honourable friend the former Home Secretary, Mr. Merlyn Rees, has not been alone in urging the need for legalisation of the security services. In other democracies the activities of the -security services come under the general supervision of Parliament. They do not do so here and we submit that this is a moment to make some suitable provision.
I think that the major concern about the White Paper has been the extent to which damage to the public is to be presumed in so many situations, whereas I submit that no such damage can or might be established. Disclosure of any information in several of its classes will constitute absolute criminal offences, in accord with the provisions of the White Paper, to which no defence can be made. One such class is information supplied in confidence by a foreign government or international organisation. In that class of information, as the White Paper puts it:any unauthorised disclosure is harmful, and the Government sees no purpose in setting a test of harm which is bound to he satisfied in every instance".In our submission that is far too sweeping and far too unqualified.
No serious injury or damage test is to be applied. What is presented in the proposal is simply an assertion that everything included in that category is an absolute offence to which, in effect, there will be no defence. A defendant—a person charged—would be liable to be convicted and perhaps imprisoned even if he could show that the disclosure did no harm either to the British Government, foreign governments or the international organisations concerned; or to the relations between the British Government and foreign governments. I submit that no serious injury or damage test is applied.
The scope of this category of information is also vast, covering, as I said, not merely foreign governments but international organisations such as the EC, the United Nations Food and Agriculture Organisation, the ILO or the World Health Organisation. I submit that it is wholly unacceptable that information in any of those categories should be protected by the criminal law merely because of its 502 source and without regard to its content. The vital consideration—namely, whether or not harm is done by its disclosure—is absent.
Another class of information, which, if disclosed, would again apparently constitute an absolute offence is unauthorised disclosure of information by members or former members of the security or intelligence services or those who work closely in support of or who are in frequent contact with the services. The provisions of paragraph 42 of the White Paper in which that is set out are in marked contrast with the Franks Report, which recommended that offences for the disclosure of information relating to security and intelligence should constitute an offence only if they were likely to cause serious injury to the interests of the nation or the safety of the people.
The presumption of damage to the public interest contained in more than one of these proposals is unacceptable. In our submission, the principle that all unauthorised disclosures of information by members or former members of the security or intelligence services should never be justified whatever the circumstances is wholly unacceptable. This is a matter over which I am sure we shall need to ponder very long indeed before we add such a threat to the statute book. We submit that there appears to be no room for the balance that is needed between the proper requirements of national security on the one hand and the freedom of speech and of the press on the other.
Another all-embracing category is interception, which is dealt with in paragraph 53 of the White Paper. It is linked with security and intelligence matters. In that paragraph the way is paved for another absolute offence. Indeed, your Lordships will no doubt have read or will be reading the conclusion of that paragraph:The Government does not therefore consider that a specific test of harm can he formulated or, indeed, is necessary or appropriate for this category of information"—namely, information relating to the process of interception that is obtained. So again the way is paved for the creation of yet another absolute offence. There are too many such provisions in the White Paper.
In the light of the extent to which damage to the public is to he presumed and not proven in several categories and classes of information, the need to consider the introduction of acceptance of a public interest defence becomes more important. The White Paper dismisses it out of hand. As Lord Justice Griffiths, as he then was, said in 1985 in the case of Lion Laboratories Ltd. v. Evans:The defence of public interest is now well established in actions for breach of confidence … The so-called iniquity rule evolved because in most cases where the facts justified publication in breach of confidence it was because the plaintiff had behaved so disgracefully or criminally that it was judged in the public interest that his behaviour should be exposed".Should there not be a similar provision to protect those who may expose such misconduct? Should there not be room for a defence that a civil servant's disclosure was in the public interest in that he had reasonable cause to believe that the information in question indicated the existence of crime, fraud or other misconduct which ought to be exposed?
503 There is one provision in the White Paper which I am happy to say is acceptable, certainly to me and I venture to think to the House; namely, that no prosecution may be brought now under Section 2 in England and Wales except by or with the consent of the Attorney-General. That consent is to continue to be necessary. The Government propose under the new legislation that no prosecution should be brought in respect of information relating to security, intelligence, defence, international relations or interception of information provided by other governments or international organisations on conditions requiring to be held in confidence except by or with the consent of the Attorney-General. I personally agree with that provision.
The Attorney's duty is to protect the public interest, and the need for such protection in this field is vital. However, it is the case that the office of Attorney has sometimes given trouble in the past, as no doubt it will do in the future. It occurred when Lord Simon held the office of Lord Chancellor. Buckingham Palace rang him up to say that King George V took it hard that the draft of the King's speech contained no reference to AG. Lord Simon wondered why the Attorney-General should be specially mentioned. Much legal and ministerial brain work was apparently expended on this question. In the end Lord Simon had to ring the Palace to ask what the King had in mind. The prompt answer was that it referred to the closing sentence of the speech which read:I pray that the blessing of Almighty God may rest upon your counsels".Somebody had omitted that sentence apparently from the draft of the speech. At any rate, the role of the Attorney-General should clearly be maintained and is important in this field.
Much work remains to be done. I submit that the two debates on a Friday in the two Houses are a wholly inadequate basis for bringing forward legislation in this field. We are glad to hear that the Government's mind is not closed. There must be, and will be, a case for further opportunities for rethinking. That is greatly necessary in the light of the inadequacy and unsatisfactory nature of this White Paper.
§ 12 noon
§ Lord Hutchinson of Lullington
My Lords, I start by echoing something that the noble and learned Lord recently said. The major disappointment of this White Paper is that no attempt has been made to set the protection of official information in the context of public information as a whole. There is no reference to civil rights, to the freedom of the press, to free speech, or to the right of the individual to the necessary information on which he can exercise his rights. How can we intelligently discuss the protection of official information, the public interest in non-disclosure or the harm of unauthorised disclosure without taking note of the opposing public interest that the public information is indeed information to which the public should normally have access?
504 I wish to ask the noble Earl a number of questions. Have the Government not read the judgment of Mr. Justice Scott, the speeches of the noble and learned Lords, Lord Bridge and Lord Oliver, in the Spycatcher case, and Lord Coulsfield in the Cavendish case? Are they not aware of the central issue highlighted in those judgments: the balance between the proper requirement of national security and the principle of freedom of speech? Have they not read the out-and-out judicial rejection of the concept of absolute protection of the security services? It is a concept described by Mr. Justice Scott as unachievable anywhere this side of the Iron Curtain. I look forward to an uncontroversial comment on that matter from the noble Lord, Lord Armstrong of Ilminster. I look forward, as I am sure everybody does, with the greatest interest and respect to his maiden speech.
Have the Government seen the description of the ability of the press to freely report allegations of scandals and iniquities in government or the secret services as one of the bulwarks of our democratic society? Have the Government noticed the advent of the dissemination of information by satellite and other electronic means that causes information to travel around the world in seconds and to become universally known? It would not appear from the reading of the White Paper that they have. We must therefore debate the White Paper on the Government's own chosen and restricted ground.
I should like to give praise to the Home Secretary for much of what he has achieved: for having the courage at last to grapple with the problem; for sweeping away the clutter of Section 2 and limiting the area of protection to the six categories of information; for getting rid of classification and ministerial certificates; for the omission of Cabinet documents, economic affairs and private information from those categories; for abandoning the old wording "interest of the state", "of the nation" and "of the realm"; for keeping the maximum sentence of two years and the consent of the Attorney-General; and, above all, for the courageous and admirable decision to give to the jury the determination in a number of cases of the question of what is or is not the public interest.
Having noted all that, I suggest that our expectations are suddenly dashed. Paragraph 79 the White Paper says that,it will be for the courts, and the courts alone, to decide whether the disclosure of particular information is criminal. The Government is entrusting the safeguarding of the public interest to the jury".Alas, this is simply not so in a number of the White Paper proposals. Paragraphs 26, 38, 39 and 42—as the noble and learned Lord has pointed out—deal with the category of security and intelligence matters. For members of the services, and anyone the Government choose to designate, the unauthorised disclosure of any information relating to those matters, even if it has already been disclosed abroad, will be deemed to be damaging to the operation of the services. Equally, any information falling within a class or description designated by the Government will equally be deemed to be damaging.
We are back once more to blanket prohibition. We are back to the Section 2 cups of tea syndrome—to 505 government designation. No matter how trivial, innocuous or stale the information, the offence is to be virtually an absolute offence. The jury will have no role in deciding what is or what is not in the public interest.
Let me turn to the media and to the public. Under paragraphs 28 and 51 the disclosure of any information obtained in confidence from any other government or any international organisation, will be deemed harmful. However trivial or innocuous the information from Brussels, the United Nations, the World Health Organisation or the International Labour Office may be—it may merely refer to the rates of VAT, the disposal of nuclear waste and the hundreds of bits of information that pour out of the EC—it will be covered by another blanket prohibition including material from South Africa, Iran or Colonel Gaddafi. Once again, the jury will have no role in these proposed offences. As the noble and learned Lord has pointed out, under paragraph 53 the disclosure of any information relating to the process of interception will be deemed harmful. However outrageous or mistaken the opening of the mail or tapping of the telephone may be, the jury will have no role.
All these offences will, to all intents and purposes, he absolute. It will not be the jury who decides whether disclosure is criminal. The Government will have already made that decision.
I wish to ask the noble Earl a question on this issue. Let us suppose an officer of the services leaks information to a journalist. At the journalist's trial, under paragraph 57 it appears that the prosecution would have to prove that disclosure would be likely to result in harm and that the journalist knew or would reasonably be expected to know that harm would result. At the officer's trial damage would be deemed to occur simply by disclosure and the prosecution would have to prove only disclosure. What happens if the journalist is acquitted? What happens if the jury takes the view that disclosure is not criminal? How can it be criminal for one and not for the other? What happens, as would be normal, if the journalist or the officer are tried together? Is it harmful in one case and not harmful in the other? I suggest that the only solution is that of paragraph 79; that the jury should decide the matter in both cases. I ask the noble Earl whether he will confirm when he sums up whether I have understood that correctly.
I now pass to the next two categories: defence and international relations. In paragraphs 49 and 50 an offence is committed if there is any disclosure of information relating to international relations which is likely to prejudice dealings between the Government and any foreign government or international organisation, or to prejudice the capability of the Armed Forces, or seriously to obstruct the promotion of UK interests abroad. This is breathtakingly all-embracing. Under Franks, a criminal offence would only have arisen upon disclosure of material classified as secret: that is, giving rise to serious injury to the national interests. Material classified as confidential—that is, prejudicial only to the national interest—would not have given rise to criminality at all.
506 The Government have become more restrictive in the last 16 years; the threshold indeed has been lowered. What about corruptly-obtained contracts, of overpayments and irregularities in the Ministry of Defence? What of an Irangate situation? Disclosure would certainly prejudice the Government's dealings. If there is dishonesty, negligence, inefficiency or mistake, disclosures surely should prejudice dealings in some case. The Government surely cannot be allowed to throw a cordon sanitaire around their dealings with all other states and all organisations.
I beg the Government not to repeat the mischief of the past of the blanket prohibitions. They lead to injustices, to perverse verdicts by juries, to litigation, to investigative journalism, to the evil of official and unofficial leaks and to the nonsense of self-authorisation. There should surely be a general consensus on the kind of information that should be protected. I am sure that in this House we could come very close to agreement on that. Where there is not consensus then it should be the jury who decides on criminality, in all cases guided by the judge as to the law applicable. There must surely be room too for basic civil rights to obtain for all servants of the Crown.
That takes me, lastly, to the public interest defence. This defence has been recognised by the judges to whom I have referred. It is recognised in the law relating to breach of confidence. There must be a place somewhere for the disclosure of iniquity in a civilised democracy. The White Paper rejects this defence in paragraph 58 on a false premise and an apparent misunderstanding of what that defence means. First, it is said that the ciminal law does not concern itself with motive and, secondly, because it is unacceptable for a person to disclose protected information:simply because he conceives that he has a general reason of a public character for doing so".This defence does not mean, for example, that if you steal with the motive of giving to the poor, or you refuse to pay taxes because you believe the money should not be spent on nuclear arms you are not guilty. Motive of course in these sort of cases is totally irrelevant. A public defence is a legal defence spelt out in an Act of Parliament. The court has to decide whether the accused has proved on a balance of probabilities that the disclosure alleged was necessary in the public interest in order to disclose iniquity. In the Shepherd Bill, the defence was limited to the proof of crime, fraud or certain other misconduct and only came into play after the iniquity had been drawn to the attention of the authorities. The Act of 1889 had a public interest element. The Act of 1911 had an arguable public interest element which was relied on in the Ponting case.
I cite a parallel situation. Under the Obscene Publications Act there is a defence of public good on the ground that the allegedly obscene material was published in the interests of art or learning. The jury in those cases first has to consider the allegation of obscenity. If proved, it then has to decide whether on balance the publication is nonetheless justified as being for the public good. With this defence, the jury's task would be similar. Was the disclosure unauthorised? if it was unauthorised, was it 507 nonetheless justified as being in the public interest? The Government's argument on this is odd when one sees that the essence of Section I of the Act, which is being retained, is proof of an act done for a purpose prejudicial to the interests of the state: the purpose of the accused's action being central to the offence.
If the Government genuinely wish to legislate with maximum agreement—I sincerely believe that that is so—then I beg them to consider again, first, the blanket prohibitions and, secondly, to prohibit disclosure only if it specifically and clearly damages the public interest; thirdly, to give public servants some way of legally breaking the straitjacket which in modern times no self-respecting democrat can be forced eternally to wear; and, fourthly, to make paragraph 79 a reality and let it form the bedrock of the new Bill.
Ministers will still continue to decide what to disclose. The civil law of confidence will still be available and disciplinary sanctions are to be increased. Is that not an armoury sufficient for a democratic government in the 1990s? On that basis we might surely all be able to go forward together.
§ 12.19 p.m.
§ Lord Armstrong of Ilminster
My Lords, I am very grateful to those noble Lords who have spoken already about my intervention in this debate. Perhaps it is not unfitting that a recently retired bureaucrat, but lately come among you, and still peering uncertainly from under the storm clouds of the Official Secrets Act which has governed his conduct and curbed his chattering tongue for nearly 40 years, should be wafted back from a desert island to break his silence in this House on the subject of that very Act.
I hope that it will not be regarded as controversial if I remind the noble and learned Lord, Lord Elwyn-Jones, that my visit to Australia was not in defence of the Official Secrets Act, over which the Australian courts have no jurisdiction.
I shall try to be as little controversial as the subject will allow. I shall also be brief. In the interests of brevity I shall try to be economical with words though not I hope with the truth, save in the sense commended by Edmund Burke when he wrote:Falsehood and delusion are allowed in no case whatever; hut, as in the exercise of all virtues, there is an economy of truth. It is a sort of temperance, by which a man speaks truth with measure, that he may speak it the longer".The White Paper that we are considering today is not about accountability of the security and intelligence services, nor is it about public access to official information and openness of government. Some of those who have commented on the White Paper have seen that as a serious deficiency. I believe that if we wait for the construction of a balanced package of measures which covers both the protection of information and the access to information, we might have to wait rather a long time. So I do not think that that absence should be regarded as a serious deficiency.
The question of public access to information is a separate though of course a related question. I believe 508 that it is both practicable and sensible, irrespective of—indeed, if you like, a good idea as a preliminary to—whatever it may in due course be decided to do about public access, to decide what should be done to safeguard official information whose unauthorised disclosure would cause such serious injury to the interests of the nation or the safety of the people that it requires the protection of the criminal law and the sanctions associated with it. That is what the White Paper is about.
The first problem is to define the categories of official information which require the protection of the criminal law. Those who drafted Section 2 of the 1911 Act were able to save themselves the trouble of devising a statutory definition by devising a catch-all provision. It applied to all official information, whether significant or trivial, damaging or innocent, and left it to the discretion of the prosecuting authorities and the Attorney-General to decide whether to institute proceedings in particular cases.
It has long been clear that this will no longer do, if it ever would do, for reasons which are familiar to your Lordships. Neither public servants nor the media know where they stand. The prosecuting authorities are put into an impossible position. The section has become virtually unworkable and it is high time to reform or repeal it.
We could not just repeal it and put nothing in its place unless it was possible to argue that there was no official information whatever so sensitive that the national interest required it to be protected by the criminal law. I do not believe that that can reasonably be argued, so we have to think in terms of reform.
We must no doubt reserve final judgment until we see the Bill which the Government propose to introduce in the next Session. But on the evidence of the White Paper I believe that the Government are entitled to claim that their proposals in general represent an effective, enforceable and reasonable solution to the problems that face any attempt at reform in this area, and a reasonable balance between, on the one hand, the need to protect highly sensitive information from unauthorised disclosure and, on the other, the public interest in not imposing unnecessarily oppressive criminal sanctions on public servants or on the media.
There are two particularly significant changes as compared with previous essays in the reform of Section 2. First, the Government propose to narrow considerably further (as compared with the Franks Report of 1972 and the 1979 Bill) the range of categories of information deemed to require the protection of the criminal law, leaving other categories of confidential information to be protected by other means, such as the Civil Service Code of Discipline and other legislation.
I believe that all the categories identified in the White Paper are categories for which the protection of the criminal law needs to be retained. I understand the arguments of those who say—as has been said by the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Hutchinson—that it would not be right to retain absolute protection for information obtained in confidence from other governments or international organisations. Against those arguments 509 it must he said that it is not easy for anybody in this country, whether the Government or the courts, to second-guess the judgment of the government of another country as to what they regard as necessary to keep confidential. Moreover, if we want the governments of allied and friendly countries to keep our secrets—I must say that, in my experience, we do not receive much information in confidence from Colonel Gaddafi—we must show ourselves ready to protect theirs to the best of our ability. If we do not do so we run the risk of losing the information, damaging our relations with those friendly and allied governments and impairing the effectiveness of our Government in international diplomacy.
Many noble Lords have already welcomed the second especially significant change as compared with previous essays in reform. It is the proposal that the court, rather than the Secretary of State, should be the judge of whether a particular disclosure of information, particularly relating to defence or international relations, meets the test of serious damage.
The ministerial certificate was seen as one of the most objectionable features of the 1979 Bill. I believe that the Government are right to dismiss the various ideas for compromises or halfway houses that have been canvassed in discussion since 1979. It must be a choice between the Minister and the court. The proposal that the judgment should be left to the court requires the Government to establish to the satisfaction of the court the case for thinking that serious harm is likely to arise from the disclosure and removes the risk of suspicion, however unworthy and unjustified such suspicion might generally be, that a ministerial certificate had been given for some other reason than serious damage to the national interest. There must remain some risk that the Government may on occasion he inhibited from bringing a case which ought to be brought by the fact that the information required to demonstrate serious harm is itself too sensitive to he used in court. On balance, however, it seems to me right to run that risk as the price of a reasonable and acceptable resolution to this problem.
Perhaps your Lordships will not be surprised to hear me say that I welcome the evidence in the White Paper of the Government's special determination to ensure the protection from unauthorised disclosure of information relating to security and intelligence. I am sorry that it has been thought necessary in pursuit of this to propose the introduction of a special offence applicable to members of the security and intelligence services. But the reasoning on which this conclusion is based seems to me to he convincing. I agree with those who say that the obligation of confidentiality—the duty not to disclose without authority information derived from the performance of official duties—has to be absolute and lifelong for members of the security and intelligence services. I believe that all those who become members of those services are well aware of that. I have certainly not been able to think of any other satisfactory way of dealing with the problem which avoids the discrimination which the proposal implies.
However, such a measure will he tolerable only if it applies not merely to members of the security and 510 intelligence services but also, as the Government propose, to those other public servants who, because they work in support of or in close contact with the security and intelligence services, have the same kind of access to sensitive information relating to security and intelligence and to the operation of the services as the members themselves. Therefore, I welcome, and I believe that other public servants will accept, the proposals in paragraphs 44 to 48 of the White Paper, which are, I believe, as the noble Earl, Lord Ferrers, said in introducing the debate, sufficiently protected with safeguards. It will be important to make a reality of those proposals.
For the sake of brevity I pass over many important matters which other noble Lords will raise in the rest of this debate and which we shall be able to consider when we have a Bill before us. I come back to the general point. The proposals in the White Paper seem to me to be soundly based, moderate and a sensible solution to the problems of reform of Section 2. I believe that they will be welcomed by public servants as bringing clarity and effectiveness without oppressiveness into an area where the existing law is at present oppressive by its very vagueness and uncertainty. I look forward to the introduction of a Bill on these lines early next Session.
§ 12.30 p.m.
Lord Campbell of Croy
My Lords, it gives me the greatest pleasure to congratulate the noble Lord, Lord Armstrong of Ilminster, on his maiden speech. As I am the first speaker to follow him, I congratulate him, I am sure, on behalf of the whole House. He spoke with ease and clarity, and of course with great authority. I am especially pleased to be doing this because we have known each other for a long time. We met in 1954, 34 years ago, when he was private secretary to the Economic Secretary to the Treasury and I was private secretary to the Secretary to the Cabinet (then Sir Norman Brook). His very distinguished career has included being Principal Private Secretary at No. 10, Permanent Secretary at the Home Office and Secretary to the Cabinet. He brings great knowledge and experience of many aspects of government to our deliberations here. We all look forward to hearing him again in our debates and if I may borrow a word from his speech today, I hope that he will not be economical in his future contributions to this House.
I should like to congratulate the Government on tackling the subject of Section 2. After the Franks Committee the Labour Government stated their intentions in 1978. The following Conservative Government introduced their Bill in 1979. That Bill foundered on the rock of ministerial certificates. The objection raised—although the Franks Committee recommended the certificates—was that they left the Government with carte blanche to rule that a matter was secret and involved intelligence or information which could endanger national interests.
The Government have now taken a decision to dispense with ministerial certificates. I applaud that, although I recognise the dangers. Can a jury in certain circumstances arrive at a conclusion when the subject matter is so secret that it can be told nothing about it? Alternatively, a closely guarded secret could 511 become public or be disclosed, with no-one to blame, if a case concerning it was before a court and jury. We can think of examples of secrets which were well guarded before the 1939–45 war and which our enemies did not discover. That was very helpful to us. I am sure that other speakers will expand on that. However, I regard the fact that the Government have taken this step and have accepted the risks involved as an earnest of their intention this time successfully to replace Section 2. I hope that those who opposed the 1979 Bill for the reason of the ministerial certificate will not now raise other objections to the whole attempt to do away with Section 2.
Today, noble Lords will not be surprised to hear, I shall concentrate on the proposal that the intelligence and security services should maintain a life-long vow of secrecy. I initiated a debate on that subject on 16th March this year when the White Paper was in prospect. We knew that it was coming during the summer. Of course, I am pleased but not surprised that the White Paper proposes what I was advocating when I led off that debate.
Section 2 covers all official information whether secret, sensitive or not. At last that is to be changed. The thousands of people working in ministries of different kinds will no longer be subject to that catchall anachronism. However, those who work in the secret organisations must accept, before they join them, the special requirements attached to their careers. Their organisations and everyday activities must be secret or there is no point in the existence of those organisations. Prospective recruits must be clearly briefed beforehand and enter into the necessary obligations before they start work. I shall not expand on that because we discussed it in the debate on 16th March.
I am glad that the principle is still to be maintained, and I hope that it will be more clearly applied in future with no room for misunderstanding. Of course, books, articles and interviews will still be possible, as in the past, provided they have been cleared and authorised beforehand. Obvious examples are books on gardening or cricket. However, almost anything about their work might be valuable to a terrorist organisation.
Some of the criticism of the White Paper is, in my view, off target, including, if I may say so with respect, some that came from the official Opposition in another place a week ago. The essential requirement that the intelligence and security services must maintain full secrecy about their organisation and work need not affect or invalidate the welcome relaxation of Section 2. That section is applied to the Armed Forces, to thousands of civil servants in several departments and to other people in bodies which come in contact with sensitive subjects. In future those people will have a clearer picture of security as it applies to them and to their work. The media and the public will benefit from the sweeping away of Section 2.
Again, since the White Paper was published there has been criticism along these lines: why bother to protect secret defence information which the Soviet Union probably already knows? That is a totally false 512 argument. Whether or not the Soviet Union knows already is not strictly relevant. It is Colonel Gaddafi, international terrorist organisations and smaller countries with aggressive, irresponsible leaders who should not have valuable information handed to them.
As regards the Soviet Union, I do not think it fanciful to foresee in the future co-operation with the Russians in anti-terrorist plans where the countries concerned pool the appropriate information and resources. All those countries will be concerned to prevent that information falling into the hands of terrorist organisations. Whether information is likely to be known already by the Soviet Union is not a test of whether it can be safely released to the public.
In relation to the intelligence and security services, certain individuals outside those services are to be designated and treated in a similar way. There has already been misunderstanding about that and I am glad that today my noble friend Lord Ferrers said more on the subject. I understand that particular addition because there are people working in departments such as the Foreign Office who, because of their jobs, are in close contact with the services and come to know a great deal about them and their organisations. In my own career as a Foreign Office official I once occupied such an appointment.
My noble friend said that there should be no retrospective designation. Of course there should not be. However, I urge the Government to ensure that an official is fully informed about this designation before he is appointed. It is not enough to tell him as he arrives at his appointment. He must be prepared to accept the obligation and he would not go into the job if he does not accept it. In that way, he would be treated in a similar manner to recruits who enter into the intelligence and security services.
I should like to say a few words about the arrangements within those services. Two or three years ago there was a demand for some sort of ombudsman who could deal with complaints of conscience or propriety. A staff counsellor was appointed; he has been in the job for some months. I hope that the Government will do all they can to make sure that his existence is widely known. He must be someone with wide experience—at present it is Sir Philip Woodfield—who is independent of the services but approachable informally by any member of the services who is worried about the ethics or the propriety of any part of the work of the organisation.
Telephone tapping is one of the subjects that always seems to come up in this context. I was a Secretary of State for four years, responsible for authorising telephone tapping, deciding whether to sign a warrant or, more important, deciding when not to do so. Therefore, I am particularly concerned that those who think that an authorisation of telephone tapping is not being carried out properly should have a means of complaining without going through their immediate superiors. I hope that the Ministers concerned will keep a watch on the new system of a staff counsellor and help it to develop in the way intended.
I look forward to the introduction of the Bill. Of course, there will be parts of it with which some noble 513 Lords will not agree, but I hope that the general principle will be supported. I certainly support it myself.
§ 12.42 p.m.
§ The Earl of Longford
My Lords, in my few remarks I return to the main issue that more than any other interests the noble Lord, Lord Campbell of Croy. However, before doing so I join him in the most cordial congratulations to the noble Lord, Lord Armstrong. If I am allowed to speak as an old-timer in this House, surely no one ever blames a speaker for being economical with the truth in this House. We occasionally criticise people for being overgenerous with the truth but I am sure that that is not a trap into which the noble Lord will fall.
Perhaps I may be bold enough to make one comment on the various controversies in which the noble Lord, Lord Armstrong, has played a worldwide part. He found himself in a number of controversial situations. Of course many of us have done that, but perhaps at not such a high level. I submit that it is only the exceptional public spirit of the noble Lord and his courage which led him to assume all these responsibilities. A lesser man would have passed the buck upwards or downwards; and I hope the noble Lord will accept that as an intended compliment.
I join in the general criticisms which have been so well expressed by my noble and learned friend Lord Elwyn-Jones, and which no doubt will be expressed just as well by my noble friend Lord Morton of Shuna and others on this side of the House, and which were expressed by the noble Lord, Lord Hutchinson of Lullington. I shall deal with one issue which the House will feel should not absorb all our energies but which is worthy of a few minutes' consideration as it appears to have been neglected. I deal with one category of public servants; namely, ex-Ministers.
In saying that I am dealing with the position of ex-Ministers I have to add that I shall not deal with all the proprieties involved. It would be a matter of argument as to whether the published diaries of our old friend Mr. Richard Crossman deserve praise or the opposite. He was a friend and colleague of mine for about 50 years and I therefore refreshed my memory on what he said about me.
I am sorry to find that he offered this opinion in his diaries:That leaves me to deal with the terrible collection of old lags who should be got rid of".He mentions one or two who are in this House and then comes to his old friend, myself:Frank Longford, who's become a farcial figure".If noble Lords think that is the worst that can be said about anybody, I can assure them that it is not. Those comments may amuse the historians but I hope will not produce a final, historical verdict on the characters or issues involved.
Those controversial diaries have not been confined to this side of politics. Some noble Lords will have served in this House with the much-respected figure of the late Lord Kilmuir. No-one ever criticised him on personal grounds until he published his memoirs. 514 Possibly under the influence of his publisher, he included some very sharp comments. That is not to say that he said some sharp things about the noble and learned Lord, Lord Hailsham—he was very friendly about him. However, I shall not quote those remarks but shall leave the noble and learned Lord to read them if he has not done so already. They arc entirely faithful.
At the time, Lord Kilmuir was considered to be very sharp about Selwyn Lloyd. He did himself far more harm, as far as I can judge, and I saw the way he was treated here after his book appeared. I quote what he wrote about Harold Macmillan, who had sacked him.I got the impression that he was extremely alarmed about his own position and was determined to eliminate any risk to himself by a massive change of government. It astonished me that a man who had kept his head under the most severe stresses and strains should lose both nerve and judgment in this way".I would rather be called farcical than that! That undoubtedly damaged his reputation, and many people would say that observations of that kind should not be made. However, I am not dealing with those issues today but with the legal position.
The question of whether there should be any legal restraints placed on Cabinet Ministers was carried to a certain point during my time in the Cabinet. My noble and learned friend Lord Elwyn-Jones will remember this extremely well. I am not revealing anything that cannot be read in the Crossman Diaries, but in this House I presume one is privileged and cannot be prosecuted for breach of the Official Secrets Act.
However, I am not revealing anything improperly if I say that a sub-committee was set up which duly reported. That sub-committee was set up to consider the issue of ministerial diaries after it became known that Mr. Crossman was under contract to publish books, based on his diaries, after the war. The committee included three writers (I suppose they could be called that) and two lawyers. It will not surprise the House to learn that the writers looked at the matter in rather a different way from the lawyers. Of course if the noble and learned Lord, Lord Hailsham, had been there I am not sure that he would not have been somewhere between the two. At any rate, that was the outcome—a somewhat muffled report.
In time to come—in fact, in 1976—the issue of ministerial reminiscenses was throughly investigated and a report was published and adopted by the Government. It was the report of the Committee of Privy Counsellors on Ministerial Memoirs, Cmnd. 6386. That report, it is generally said in official circles, in substance gave effect to what our earlier subcommittee had recommended.
In any case, I am anxious to make one point. So far as one can say with any confidence about a matter which is so tricky, this committee left the matter as it was. Certainly the legal situation is left as it was, though a good deal of guidance was given to Ministers. I have given notice to the Deputy Leader of the House of a question I wish to ask: that is, whether under the new White Paper the position of Ministers will be the same as it is now; or will it be affected in any way at all? I am talking in the legal 515 sense because anyone can give guidance to Ministers which they may or may not accept.
There is a point here which brings me back to a matter stressed by various speakers, including the noble Lord, Lord Campbell of Croy. Will members of the security services and others they are working with be under this lifelong obligation of confidentiality? Will they be forbidden for the rest of their lives from telling the story of their activities or of what was going on around them? Will that apply also to Ministers?
§ Lord Hailsham of Saint Marylebone
My Lords, surely a Cabinet Minister remains for life under the Privy Counsellor's oath, which a man of honour would always respect.
§ The Earl of Longford
My Lords, all members of the Cabinet are men of honour but some are more men of honour than others. They interpret those honourable obligations in different ways. For the moment I am putting a legal point to the Minister. Before this White Paper or anything like it becomes law, or this particular provision goes into law—I am asking about the lifelong confidentiality of people in the security services—does that obligation apply to Ministers? The Home Secretary or the Prime Minister know all the secrets that these gentlemen are privy to and give them instructions to carry on their activities as regards spying. One does not know these days what these gentlemen are up to. Are the Prime Minister and the Home Secretary under a lifelong obligation not to disclose information that comes to them in that connection?
I have one other question to ask the noble Earl before I sit down. This is a more speculative kind of question to answer. Does the Minister agree that until now Ministers have been under less of a restriction than government servants? Whatever may be the issues in terms of honour, in terms of practice that would seem to be so. Government servants have been far less effusive in their memoirs than Ministers. Hardly anyone nowadays ceases to be a Minister without writing about it, but that does not apply to many public servants. I wonder whether that will be the position in future. I hope that the rules are not to be tightened up against Ministers; I hope that they will be loosened and that a more generous atmosphere will prevail. I hope that the noble Lord, Lord Armstrong, will write his memoirs and that he will not be unduly inhibited by past times. In general, I hope that we shall see a loosening rather than a tightening of the rules.
I return to the point I made. It may be a small one, but it has not been touched upon. I have given the Minister notice of it and I hope that he will answer it. Will Ministers be bound by this lifelong vow of confidentiality if they have been concerned with the security services?
§ 12.54 p.m.
§ Lord Hemingford
My Lords, I should like to confine myself to giving some specific responses to 516 specific points in the White Paper. These are based to some extent on discussions which the Association of British Editors, of which I am the honorary secretary, had with other media bodies such as the Press Council, the British Committee of the International Press Institute, the BBC, ITN and the Periodical Publishers Association, though I am not in any way mandated or empowered to speak for them. They will make their own responses in due time.
I stress too that this reaction is limited because other noble Lords have already dealt with the question of whether we should have a Freedom of Information Act or whether Section 2 could safely he abolished and not replaced by anything. Both those ideas have their advocates, but I do not propose to deal with them today. Of course secrets must be kept, and I believe that the approach that the Government have adopted in this White Paper is perhaps more subtle than one might have expected. It is true that it removes from criminal sanction a great deal that ought to be removed. In a way I believe that merits only one cheer because perhaps it is no great thing to remove from the reach of the criminal law all that weight of mundane information which it at present embraces. But it is something and I welcome it.
It is also welcome that in paragraph 65 the mere receipt of information is no longer to be regarded as a criminal offence. Whether, as represented by the Secretary of State in another place, these proposals will produce an earthquake in Whitehall one may doubt on reading paragraphs 71 to 73. They make it clear that other means can he used to prevent the release of information. Nevertheless, it is welcome for putting matters on a better footing. I believe it is true that disciplinary action rather than criminal sanctions is clearly the right way to deal with many leaks that may occur from the Civil Service.
One has always recognised that the Armalite rifle, represented by a reformed Section 2, would be a more lethal weapon than the present blunderbuss. In some respects I believe that this particular rifle is unacceptably dangerous. My general worry is the absolutism in three main areas. The first is the treatment of disclosure by members of the security services and those associated with them. I do not believe it is right to say that everything unauthorised said by them is by definition harmful. Other nations manage to allow some informed public discussion of their security services and I think that we should find it possible too. There is also undue absolutism in the treatment of disclosure about telephone tapping and bugging and on information received in confidence from foreign governments.
I believe the White Paper is eloquent on the harm that can be done to the proper activities of the security services and the telephone tappers. It takes no account of the harm that arises if there is an absence of information about improper activities in those areas or at least the impression that, because of the blanket ban on information, improper usage may be wrongly concealed. That is my main worry as regards paragraphs 38 to 48, taken together with paragraph 53.
The White Paper adduces the public interest a good deal in its discussion of the need to keep 517 information secret. For example, the paragraph on interception says:Such interference is acceptable in the public interest only if those responsible for interception maintain the privacy of the information obtained".Surely it is also in the public interest that if interception is misapplied or wrongly used, that information should be made known. I believe that the balance of the White Paper is in need of adjustment on this point. Whether this balancing element should be described as a public interest defence or an iniquity defence, or by some other wording, does not particularly matter, but there has been misunderstanding about the nature of what is meant by a public interest defence.
A defence of this kind would depend not as the White Paper suggested on the motive of the discloser, but on the nature of the information which is disclosed. That is the basis of the public interest defence in the law of confidence, and the courts have refused to enforce an obligation of confidence where the information concerned related to serious wrongdoing. Provision must be made, we believe, for the possibility that greater harm may be done to the public interest by non-disclosure than by disclosure, even if harm were to arise in either case. I am not confident that the proposed arrangements for taking an issue higher within Whitehall will meet this need. The paragraphs on interception, on information from foreign governments and on the security services are much too absolute.
In the case of paragraphs 50 and 51 I am more concerned that the definition of what constitutes an offence may turn out to be too broad. I accept, as the noble Earl said at the beginning of the debate, that when we reach the legislation stage the language will have to be more precise. I feel that the present intention is too vague. Almost anything might be held to be likely to jeopardise the promotion of United Kingdom interests abroad or to prejudice dealings between this Government and another government or an international organisation. A much more rigorous test would be necessary if it were indeed necessary to include this area of activity.
What would be the position, for example, if official information relating to international relations were used in a film like "Death of a Princess", which so upset the Saudi Arabian Government some years ago? And what of information, disclosure of which might endanger the safety of a British citizen? British citizens are apt to get into amazing scrapes round the world. The safety of a British citizen in Spain might be endangered by information on alleged drug smuggling which it was otherwise highly desirable to make known. A British citizen in, for example, Iran might be endangered by almost any information about the Ayatollah Khomeini or the Iranian Government that might be made public in Britain. Is all such information thereby to be caught? We believe that this provision should be removed.
§ Lord Hailsham of Saint Marylebone
My Lords, I do not wish to interrupt the noble Lord, but if I read correctly the paragraph to which he is referring, only information given to this Government in confidence by another government is affected by those 518 paragraphs. I rather doubt whether, for instance, the Iranian Government give or this Government receive much in confidence from one another.
§ Lord Hemingford
No, my Lords, but information about events in Iran might come from a third government. This would presumably be covered.
Finally, I have hitherto felt that there ought to be an absolute defence of prior publication. However, the test of harm now proposed in paragraph 63 seems largely to meet the case. I suggest though that the emphasis might be reversed so as to make it clear that prior publication would often be a defence, although not an absolute one. On that point in general, I wonder whether enough thought has been given to the effects of international satellite communication in this context.
Those are my specific reactions. There is much to he welcomed—perhaps not much, but there is some that is welcome in the White Paper—but I am concerned about the absolutism on those points which I mentioned.
§ 1.5 p.m.
§ Lord Morton of Shuna
My Lords, of course the Government are to be congratulated on tackling the issue of replacing Section 2 of the 1911 Act. We agree that it needs to be replaced and not merely repealed. I intend to criticise some aspects of the White Paper. That does not mean that I agree with everything else or that I disagree with everything else. It is unfortunate that the White Paper does not include any proposal to bring the security services under some form of parliamentary control. I agree wholly with what my noble and learned friend Lord Elwyn-Jones said on that point. It is also unfortunate that it does not do anything to tackle the issue of freedom of information. This is obviously deliberate on the Government's part but it is the necessary other side of the coin.
If we are discussing what has to be kept secret, there should be some method of dealing with what is not secret. Although the Government claim to have given out more information in their eight years in power—and it may be true—all governments slant information so that it gives as favourable an impression as possible of their point of view. Governments do not tend to give out information that they dislike. They tend to slant information. What is required is some assurance that the public are getting access to information from all slants, if you like, rather than just a morass of government handouts, which sometimes are not wholly believed to be the truth and nothing but the truth. There is a difficulty with access to information which the Government—any government—must face. They have signed the European Convention on Human Rights and they have to conform with Article 10, which provides that right.
However much the Government are to be congratulated on departing from the idea of an absolute ministerial certificate—and the move is welcome—they detract from that wholly by a determination to return to the doctrine of dividing cases between what are described as "contents cases" 519 and "class cases". The theory is that in the class case no information, however insignificant, can be disclosed. It is an absolute offence. Despite the valiant attempts, as I read the courts' decisions, to get away from that and to say that one has to look at the facts and circumstances of each individual case, that it what we have come back to.
This started off in the Crossman Diaries case to which my noble friend Lord Longford referred. In that case Lord Widgery refused to allow Cabinet decisions a class defence. He laid down that to prevent publication the Government must show: first, a breach of confidence, which is fairly easy in Cabinet matters; secondly, that there was a public interest to restrain publication; thirdly, that no other public interest, contradictory or more compelling than the public interest in favour of restraint, existed; and fourthly, that the courts should prevent publication only in the clearest case when the confidentiality could be demonstrated. That is a classic example of moving on to the contents of the information.
The same was said by the European Court in the thalidomide case. It said that the various defences open to the state under Article 10 were exceptions that had to be dealt with on the facts and circumstances of the particular case. That has been the court's approach since, as the noble and learned Lord, Lord Keith of Kinkel, said in the Burmah Oil case in 1980:The claim to immunity on class grounds stands in a different category from the contents case, because the reasons of public interest on which they depend may appear debatable or even nebulous".That is the difficulty. It is a similar type of nebulous idea, that anything that is said about telephone tapping or to do with the security services must ipso facto be criminal. The White Paper is taking a backward step.
It would be interesting to know why the Government are returning so vehemently to the idea of the "class" case and why, as other speakers have said, they are so determined to restrict the public interest and deny a public interest defence. In my view, at any rate, the public interest defence should he retained. It is not a question of the motivation of the publisher of the information; it is the nature of the information disclosed. As long ago as 1856 a judge said:I do not look on the word 'iniquity' as expressing a principle. It is merely an instance of just cause or excuse for breaking confidence. There are some things which may be required to be disclosed in the public interest, in which event no confidence can be prayed in aid to keep them secret".In the cases that have come before the courts over the past 20 or 30 years, we have learnt that one cannot define public interest in any real way. One can say that it includes certain aspects, but one cannot say that that is the totality of public interest.
It is essential that there should be a public interest defence, and the right that is given to complain to some superior officer or specially appointed person is far from enough. We are all agreed that Section 2 should be replaced, but the Government should radically reconsider their proposals contained in the 520 White Paper. As they are set out, they appear dangerous to democracy and open government.
§ 1.13 p.m.
§ Lord Hunt of Tanworth
My Lords, I too should like to join in congratulating my noble friend and former colleague and predecessor Lord Armstrong of Ilminster on his maiden speech which was interesting, informative and helpful. I used to think that the collective noun for a group of former Secretaries to the Cabinet was perhaps a "silence", but nowadays we have moved on and perhaps a "discretion" is the right word. I believe that my noble friend succeeded in achieving that admirably. I hope that I can do the same.
For 40 years I worked in various jobs which were subject to the Official Secrets Act 1911, and for most of that time it did not occur to me to question the suitability of that Act. However, increasingly I came to see Section 2 as archaic, anomalous and far too all-embracing. I was involved under more than one government with preparation of attempts to reform it. Those attempts came to nought, and I am glad therefore that the Government are prepared to grasp the nettle again.
Reform of Section 2 is not straightforward, and the arguments put forward today and in another place last week, will no doubt be continued when a Bill is introduced. The Government may make, or may have to make, amendments to the details of their propsoals, but I hope that this time they will persevere to the end. Section 2 is not only highly unsatisfactory, it is discredited; and that in itself is bad for the rule of law and for the people who are expected to observe it.
I am glad to give a warm welcome to the White Paper's general approach and to most, but not all, of its proposals. I understand the disappointment of those who would have liked to see it coupled with some measure covering authorised disclosure, in the form of a freedom of information Act. Whatever the arguments for the latter—and I believe that there are better ways to bring about greater openness and accountability than a freedom of information Act—authorised disclosure is itself an extremely complicated subject. I believe that reform of Section 2 is complicated enough for one Bill. Nor do I believe it fair to represent the White Paper as a tightening up of the law. If the proposals are carried into law, the law will be more effective in a few areas, but more and larger areas—more than were envisaged by the Franks Committee to which we all pay tribute for starting us on the road to the reform of Section 2—would no longer be protected by the criminal law.
I wish to touch briefly on four points. The first is the intention to drop the idea of ministerial certificates to determine damage to the national interest. That, as one prefers, is either courageous or politically inevitable. On a first reading I was worried by the proposal to leave the decision to a jury. It seemed to me that juries are well-placed, having heard the evidence and having listened to examination and cross-examination, to answer the question: did he do it? But they are not particularly well-equipped to decide whether disclosure has done 521 serious harm to the nation. Further, I see the difficulty of devising an intermediate alternative. I have come to the conclusion that it is a question of ministerial certificate or juries, and having thought more carefully about paragraphs 36 to 53 of the White Paper, I believe that the way proposed to deal with the test of harm is, on balance, manageable and acceptable.
My second point concerns the so-called obligation of lifelong confidentiality which would rest on members of the security and intelligence services. Here I believe that the Government and White Paper have it absolutely right. Of course, it is some deprivation of freedom compared with other people, but individuals join the security and intelligence services of their own volition and know the sort of life that they will have to lead and the fact that, unlike most people, they cannot talk or write about their work. The need to protect techniques, above all, and the names of people still connected with the service, particular operations and so on, must remain after retirement.
We are. however, talking—it is a pity that paragraph 44 of the White Paper did not remind us of this—about unauthorised disclosure. Governments of both parties have published excellent histories of intelligence, and it is to be hoped that they will not want to be too heavy handed with those who want to write about it in a private capacity and who clear their manuscripts.
Authorised disclosure is a different issue. I shall not follow the noble Earl, Lord Longford, on the question of ministerial memoirs or anticipate the reply which the Minister is to give, but as I was heavily involved in that unfortunate case I should remind him that there was no question of security in the Crossman Diaries. The case against the Sunday Times was not brought under the Official Secrets Act.
My third point relates to the blanket provision contained in paragraph 51, that disclosure of information provided in confidence by other governments or international organisations should be covered by the criminal law without any test of harm. Much fun has been made of that in the context of EC directives, cocoa marketing boards, on so on. I am afraid that I have to join with those who say that this paragraph in its present form is far too sweeping. I agree very much with what the noble Lord, Lord Armstrong, said about the need to protect the secrets of our allies. But either this should be done relying on the previous paragraph 50 proposal to cover serious cases, which it would, or at least, if there is to be a separate provision, it should be subject to a specific test of harm.
Finally, I turn to what might be called the "Robin Hood" argument or the concept that it is all right to commit a crime provided that good comes of it. The concept of a public interest defence to enable juries to consider motive as a defence for unauthorised disclosure sounds fine as a generality; but the law as I understand it is normally concerned with fact, and motive only comes in as a possible mitigating factor in sentencing. The White Paper suggests that provision for a public interest defence would remove clarity in the law. I believe that that is so since the 522 justification envisaged would be almost impossible to define. I also think that its formal provision would tend to re-open the question of where a civil servant's loyalty lies. In all normal circumstances this must be to the government of the day and not to some vague concept of the public good.
Of course, it is possible to construct in one's mind quite exceptional circumstances where disclosure of information of a nature which would satisfy the test of harm in the White Paper, and thus a prosecution, would nevertheless be justified in a wider public interest. But I wonder how realistic this is in the real world.
This unlikely scenario is most usually suggested in the context of the security service. But as things now stand we are being asked to believe that the potential whistle-blower's superiors, the staff counsellor, the Secretary of the Cabinet, either the Foreign or Home Secretary and the Prime Minister are all members of the same conspiracy. I believe that this is hardly credible. If noble Lords were to feel that things were out of control to this extent, then they should be pressing for something more radical than a public interest defence.
In general I do not believe that it is right to do unacceptable harm in the hope that good may come of it. I agree therefore that there should be no general defence on the grounds of public interest which would, as it were, attempt to define the circumstances in which it would be right to break the law. I think that any argument as to the consequences or benefits for the public interest of disclosure should take place within the context of the harm as defined by law.
For that reason and for other reasons, I hope that any changes in the Government's proposals, certainly in the context of paragraph 51 which I mentioned, will be in the direction of making the test of harm in every case as specific and clear as possible. Having abolished the catch-all approach of the old Section 2, I do not think that anyone would want to bring in more catch-ails than are absolutely necessary in the individual provisions. Subject to that general point, I end by giving a very warm welcome to this White Paper. I hope very much that we shall see a Bill soon.
§ 1.25 p.m.
§ Lord Hooson
My Lords, I should like to add my congratulations to the noble Lord, Lord Armstong of Ilminster, on his maiden speech. I can give it no higher praise than to say that it was on a par with a remarkable speech of adjudication I heard recently delivered by the noble Lord's equally distinguished father, Sir Thomas Armstrong, at the Llangollen International Eisteddfod. Perhaps I may add that whereas I entirely agreed with the father, I found that in some parts of the noble Lord's speech today I did not agree with the son.
My approach is that the criminal law should only be used to prevent the unauthorised disclosure of official information which would cause serious injury to the security of the state and to the safety of the people under its protection. Therefore I am in that rare category—and I know that my own party probably does not share my view—of those who 523 believe that the way forward is to preserve the essential character of Section 1 of the 1911 Act but to enlarge it to cover certain very restricted categories of leakage of information from the security and intelligence services or from the defence forces.
I shall deal separately with such things as the leakage of information that is useful to criminals and to terrorists, for after all this form of leakage belongs to a very different sphere. Then I shall leave it at that.
If Section 1 were wider, it would be wide enough to cover the requirement of criminality with regard to these matters. The kind of disclosure which I think is envisaged by the Government in their White Paper by members of the security services would probably be so iniquitous, if I may borrow a term, as to warrant a much higher sentence of imprisonment than the maximum of two years under Section 2 of the 1911 Act. Yet such a disclosure would not be caught by the present Section 1.
Therefore my approach is rather different from that of anybody who has so far addressed your Lordships' House on this matter. Although I find parts of the White Paper perfectly sensible and acceptable, I do not think for a moment that it justified the rather euphoric reception it received when it was first outlined by the noble Earl, Lord Ferrers, in your Lordships' House. In my judgment it is a very carefully thought out, compact package which, although moving forward in some directions, moves backwards in others.
It is targeted much more carefully than the old Section 2, but I believe that it will have the effect of silencing those who, in certain circumstances, have public and national justification for disclosure. The Pontings, the Massiters, the Tisdalls of this world would be precisely picked off, although I do not believe that their disclosures harmed the security of this country at all, at least not to require the sanction of the criminal law. Likewise, although I believe that Wright was totally unjustified in publishing much of what he had to disclose, I also believe that he was totally justified in publishing that matter which referred to a conspiracy against the Prime Minister of the day. If that was true then it was an iniquitous matter and somebody would have to disclose it.
The White Paper is not concerned with classification. But I think one should always bear in mind the evidence of Mr. Chapman Pincher to the Franks Commission when he said:In my experience which, as I say, is a long one, 'politically enmbarrassing' is always a much higher security classification than 'top secret"'.So experience proves. If criminal sanctions have to be applied, if a criminal prosecution is to be launched, knowing that the maximum sentence is only two years, then it is much more likely to be provoked by the thought of political embarrassment than by anything else.
Here again I probably differ from the approach of' other members of my party. I understand perfectly the Home Secretary's approach of restricting this White Paper to official secrets. Whereas official secrets' protection and freedom of information are related subjects, they are nevertheless not the same 524 and I believe that they merit separate and distinct consideration. Given this pproach on the part of the Government—I agree with part of it, but disagree with another part of it—I wish to look hard at one or two matters.
I wish to examine the actual mechanism of authorisation. Who is to give authorisation? What are to be the guidelines for authorisation? What happens if they are ignored? As we are concerned with unauthorised disclosure, this question of mechanism seems to me to be very important.
I wish to quote from Hansard of another place of 22nd July of this year. At col. 1466 Mr. Rupert Allason, the Conservative Member for Torbay, mentioned advice given to the Prime Minister with regard to the Anthony Blunt affair in 1979. The Prime Minister apparently ignored the advice that was given to her by the then Director General of the Security Service. The advice that was given to the Prime Minister was:'You must not expose Sir Anthony Blunt. He must be protected at all costs, because if he is publicly exposed as a spy, we shall all be in trouble. It will mean that we shall never be able to offer credible immunity from prosecution to others of his ilk'".—(Official Report, Commons, 22.7.88; col. 1466.)Mr. Allason, quite rightly in my view, congratulated the Prime Minister on the decision she then took to ignore that advice.
But that raises the question not only of who is to give authorisation, but what interests are to be safeguarded. Here I believe there is scope for some form of parliamentary input. I am in favour of someone, whether they be Privy Counsellors or, as has been suggested, someone on a par with non-executive directors being put on the inside of the wall of secrecy. I believe there is a place for some kind of outside input from a totally respectable parliamentary source. There must be some safeguard against those who strongly advise not to authorise publication in order to defend not the state as such but themselves and their kind. It may be that the defence is in the interests of politicians of all parties. That certainly has been carried out in the history of the Liberal Party in the past, as well as in the history of Conservative and Labour Governments. It may be that it is put foward in the interests of a civil servant or a member of the security forces. But there must be some form of safeguard against this.
There is in my judgment a very strong case for a specific defence of public interest. It was interesting to read in Hansard of another place of 22nd July, to which I have already referred, that the Home Secretary, Mr. Douglas Hurd, seemed to imply that the ultimate safeguard of the citizen was the perverse jury; that is the jury which in the fastness of the jury room decides to acquit, as it is perfectly entitled to do—the noble and learned Lord, Lord Devlin, explained that in his very good lecture on the nature of the jury—whatever the directions that have been given to it by the judge.
If that was what Mr. Hurd intended to imply, I entirely agree with him. The stalwart, independent jury has so often provided the beacon of liberty and light on our route to an acceptable, democratic and just society. I only have to mention in that regard the Penn case, where the whole of the establishment was 525 behind the prosecution of William Penn. But I mention also the robust reaction othe London jury to that prosecution. I could translate that reaction to similar circumstances in our day.
I believe that in official secrets cases a jury always applies its own views as to what is or what is not a public interest defence. A skilful advocate, whatever the judge may say, will always find the means of getting a jury to do that, even if it is not directly allowed by the law. I believe that juries apply their own views.
It would be very much better for all concerned if the defence of public interest was spelt out specifically in an Act of Parliament. Such an Act should spell out what public interest amounts to in this context. It is not a question of motive at all. Motive is totally irrelevant throughout the criminal law. I think I am right about that. Motive and intent are two entirely separate concepts.
The question of motive does not arise. It is a question surely of balancing possible harm to the state with the benefit to the public, on the other hand, of disclosure. It would not muddy the waters in any way to put in this defence. The alternative is to leave the jury to its own devices. Your Lordships may as well face the fact that in our society in the United Kingdom a jury will take its own view of what public interest is, come what may. I think that it is absolutely right to do so.
A further argument in the White Paper against the proposal for a public interest defence is set out in paragraph 60, which states that the proposals are designed to concentrate the protection of the criminal law on information which demonstrably requires its protection in the public interest.
Here I differ from the Government. Surely that should give rise to no more than a legal presumption in favour of the prosecution. But it should be open to the defence to establish, by way of rebuttal of the presumption, that the public interest of disclosure is an even greater weight.
This matter has nothing at all to do with motive. It is simply to do with the consequences of disclosure. We should consider, for example, the specific protection of communications between one government and another. Let us suppose that a newspaper editor in 1938 or 1939 had had a disclosure sent to him by a correspondent. That communication may have concerned a communication between the government of Nazi Germany and the Chamberlain Government. That editor would he in an awful quandary in deciding whether to publish that communication. He could have made a great case for publishing in the public interest. If he were prosecuted for publishing that communication, why should he not be allowed to submit that he had done so in the public interest in that particular context?
I think we all accept as a basic proposition that free people in a free society have a right to know what their freely elected government are doing in their name. This White Paper is concerned with exceptions to that rule and exceptions that need to be protected by the criminal law.
526 I happen to believe that the disclosures that the public wish to see punished are those that they would regard as an act of treachery. I am not talking about treachery in its legal definition, because treachery in the broadest concept is very much broader than the strictly legal definition of treason. But Section I, which I think should be enlarged, should cover those matters. I do not think we need to go beyond that. But if we do go beyond it, the exceptions must be spelt out as carefully and as specifically as possible. It should be comparatively rare to find a justification for absolute offences. We should scrutinise the provision of absolute defences with great care.
The greatest advance in this White Paper is that a jury rather than Ministers should determine whether disclosure is likely to damage the operation of the security or intelligence services when it is made by people who are not members of those services. That is an advance, but I do not think it goes far enough. There is in the White Paper, and in the Bill if it follows its lines, scope for much more repressive and accurate restriction of the disclosure of information. It could be in the public interest that some of that information should be disclosed. I am in favour of a much more open society than this White Paper suggests we are to have.
§ 1.40 p.m.
§ Lord Hatch of Lusby
My Lords, the noble Earl, in introducing the White Paper, told us that the objective of the Government was to replace the notorious Section 2 with something better. I propose to take him at his word and test out the proposals of the White Paper on those grounds with particular reference to paragraph 47 and related paragraphs.
I believe it is fair to consider the most important cases of the past few years to see how they would have been dealt with if the White Paper had stood in place of Section 2. The most important was the Ponting case. It is largely as a result of that case that the debate on Section 2 has been reopened. We have had a number of proposals and debates in this House and in another place. What was the core of that case? It was that Clive Ponting gave information to my honourable friend the Member for Linlithgow, Mr. Dalyell, that Ministers were misleading Parliament on the issue of the sinking of the "Belgrano". Did that endanger national security? No, it did not. It embarrassed the Government. Although the judge in the Ponting case tried to identify government with state, the jury disagreed. I believe that the country also disagreed.
There must be a clear distinction between the interests of the government and the interests of the state or nation. It appears from the discussions that have taken place as regards the White Paper that the Government are very nervous about that distinction. The Home Secretary referred to "perverse juries". What perverse juries have there been, other than the jury in the Ponting case? Is it the case that the Government do not accept the verdict of that jury and would like to be able to circumvent such verdicts in the future?
I believe that there are elements in the White Paper by which the Government could do precisely that. In 527 particular, by their use of designation under paragraph 47, it could well be that in a similar case the judge would not send a jury out to consider its verdict. It could well be that the judge would direct the jury, according to law, to convict the defendant. If that is the attitude of the Government, then I believe that it is a grave menace to the liberties of this country and the right of the public to know what an elected government are doing in its name.
Secondly, let us consider the case of Sarah Tisdall. Ministers had refused to confirm or deny that cruise missiles were being situated at Greenham Common and at Molesworth. Sarah Tisdall was brave enough to reveal that they were. Was that not in the public interest? She was convicted of a breach of the Official Secrets Act. As a martyr to the public interest, she has served a term of imprisonment. Is it not ironic that we have had to wait for Soviet inspectors to let the British public and Parliament know how many cruise missiles are situated at Greenham Common and Molesworth? Only over the last few weeks, when Soviet inspectors visited those sites, was the British public and Parliament informed.
The third case is that of Cathy Massiter. She revealed that CND telephones were illegally tapped and that its offices had been burgled. Did those revelations endanger national security? No. They embarrassed members of the Government. They did that by giving information to the public and to Parliament to which they had a right if they are to be expected to keep control over the actions of the Government.
Fourthly, the White Paper is related to the whole question of Westland. Does anyone believe that if the White Paper had been law at the time of the Westland affair, those officials who were connected with the notorious leak of the letter from the legal officers of the Crown would not have been designated by the Government? If they had been designated, they would have broken the law by their actions in leaking the letter. Those officials were protecting Ministers who were deceiving both Parliament and the nation. It has yet to be revealed who was responsible for that leak. However, we now see that the former Secretary of State, who resigned on the grounds that he had not been protecting the integrity of public life and his duty as a Secretary of State, has been appointed as the British representative in Brussels.
I make no accusations whatever concerning Mr. Brittan. However, his name has never been cleared. He is being sent to Brussels while still under the cloud of his resignation. Surely any government concerned with the national interest and national reputation would have ensured that Mr. Brittan was totally cleared of the accusations leading to his resignation before he was sent to Brussels. That brings into question once again the position of the Prime Minister. Was the Secretary of State for Trade and Industry responsible for the leak? Was it the Prime Minister? Was the resignation of the Secretary of State a protection for the action or knowledge of the Prime Minister? The country and Parliament are entitled to know. And they have always been entitled to know. They are particularly entitled to know when 528 the Prime Minister has just appointed the former Secretary of State as a representative of this country in Europe.
My honourable friend the Member for Linlithgow was suspended a week ago in another place for using an unparliamentary expression on the issue when he described the Prime Minister as being an habitual liar to Parliament. However, suspension does not answer those serious accusations. I do not propose to use the expression. There is now an expression which has been accepted in parliamentary language: economical with the truth. That may now be used within the ambit of parliamentary language. The meaning of the two phrases is identical.
§ Lord Hatch of Lusby
I should like to refer to the debate in this House on 20th March 1985. I do not propose to spend the time of the House repeating what was said then, but if noble Lords will refer to that debate they will see that I listed quotations and occasions relating to my questioning of the Government on the matter of the "Belgrano", in which a succession of Ministers had misled the House and given me false answers.
I fear that this kind of information will be protected by this Government if the proposals are put into legislation through taking the power to designate certain groups and certain individuals. It therefore makes it imperative, if they are taken to court, for the judge to rule that they have broken the law, and it should not be left to juries. The protection of Ministers has nothing to do with the protection of the national interest. Ministers who have committed offences, Ministers who have broken trust, should be brought to the public bar. One of the ways, and often the only way, of doing so is by their civil servants informing Members of Parliament or members of the press of what is going on behind the scenes in the corridors of power.
This White Paper, and any legislation that arises from it, deals essentially with the fundamental issue of integrity in our public life. As other noble Lords from this side of the House have proposed and urged, any legislation replacing Section 2 of the Official Secrets Act should be a part, but only a part, of a code of freedom of information. It should be part of a code which would establish in statutory form the rights of the people of Britain and of the Parliament of Britain to that information which enables us to know what members of the Government are doing, to expose them when they are iniquitous and to criticise them at all times, because that is the basis on which any democratic constitution must be founded.
§ 1.53 p.m.
§ Lord Blake
My Lords, I should like to add my congratulations to the noble Lord, Lord Armstrong. I add them all the more fervently because I happen to agree with every single word that he said. That enables me to congratulate him with the more satisfaction.
I welcome the White Paper and I hope that the Government will not be too much swayed by some of 529 the criticisms that have been made this afternoon. I think that the argument that there should also be a freedom of information Act and some form of rules of accountability for the intelligence services may be correct. However, I do not see any point in postponing the reform of Section 2 of the Official Secrets Act for, as the noble Lord, Lord Armstrong, said it will be a very long time before a satisfactory freedom of information White Paper has been tabled and a Bill enacted. It is better to get on with what we can reasonably do than to postpone action indefinitely for the sake of perfection.
I am glad that the Government have decided against certification by Ministers. I do not believe that Ministers do, or would, cheat, but nevertheless they might look as if they were cheating. It would be possible to avoid political embarrassment in some circumstances if such a rule prevailed. I believe that it is better to leave it to the jury. I noted that the noble Lord, Lord Hunt of Tanworth, had some misgivings about the jury, though he came out on the other side in the end. I feel happier about the jury now that the Criminal Justice Act has abolished the right of peremptory challenge. I believe that that is a good step.
I know that this is a controversial point, but I welcome also the decision not to allow a defence of public interest. It would introduce vagueness and obscurity into the law and would give scope for endless haggling, hair-splitting and confusion. The phrase "public interest" sounds very nice but I am sure that to allow such a defence to be used would introduce the possibility of people escaping from the just deserts of their illegal actions, and that would be wrong.
I also welcome the decision to impose an absolute ban on security personnel making unauthorised disclosures, of whatever nature. I should perhaps say that I served briefly in one of the security services during the last years of the late war. Therefore I have some knowledge of what is involved. Unauthorised disclosures by security personnel are absolutely indefensible The Government are right to make that an absolute offence and also to associate with the security services people who are in a position to obtain the same kind of information or are in close liaison with security personnel. I believe that that is correct.
I should like to emphasise, as one or two other noble Lords have, the point about authorised and unauthorised disclosures. I hope that the Government will not be over-rigid on the question of authorisation, by which I mean not that they should allow anything unauthorised to go through but that they will be reasonably liberal in authorising books or accounts by people in the security services. In fact some very valuable works have been published. I am thinking of Sir John Masterman's book on the Double Cross operation, although I think that he had to bring quite a lot of pressure to bear in order for it to be authorised. I am also thinking of Group Captain Winterbottom's book which I believe was the first to reveal the story of Ultra.
From a historian's point of view it is absolutely right that those works should be authorised. The 530 entire history of the Second World War needs to he rewritten in the light of Ultra and other information of that kind. For that reason virtually all books written before 1974, if I have the year right, need to be reconsidered. The authorities were quite right, after that interval of time, to release what had rightly been treated in its day as a very top secret affair.
Recently I have had occasion to be involved in this issue in my capacity as editor of the Dictionary of National Biography. I thought that it was desirable that there should be an entry in it about Sir Roger Hollis. I invited Sir Dick White—who I believe is the only person to have been head of both M15 and MI6—to write the relevant entry. He was given the appropriate authority and the result is that there is a balanced account in the Dictionary of National Biography of that very controversial matter.
I hope therefore that the noble Earl, Lord Ferrers, will be able to assure us that this White Paper does not presage a more rigid or authoritarian attitude on the part of the Ministers authorising the disclosure of information in suitable circumstances where it obviously can do no harm. However, having said that, I intend to be brief and I shall merely say before I sit down that in general I warmly welcome the White Paper and hope that the Government will not he deflected from implementing it pretty much as it is in the form of legislation.
§ 2 p.m.
§ Lord Greenhill of Harrow
My Lords, I am very glad to have heard the maiden speech of my noble friend Lord Armstrong of Ilminster. I admired very much the way in which he abided by the conventions of the House on controversy without draining all interest from his speech.
I believe that this White Paper is welcome to us all as an attempt to deal with this very intractable problem. Before making some general comments about it, perhaps I may first explain my own locus standi in these matters. For many years in the past I worked closely with the security and intelligence services both at home and abroad. I assume that I would have been classed as one of those officials mentioned in paragraphs 44 and 48 of the White Paper who would have had the same criminal liability as members of those services in respect of the disclosure of information. Personally, I find no hardship at all in this proposal; nor, do I imagine, will the majority of my former colleagues. I do not know whether the Government can give any estimate of the number of officials they think would be covered by their proposed classification but I dare say it is surprisingly large—certainly as many as 100 or more. However, I think that the idea behind this proposal is perfectly sound.
I hesitated about whether to speak today because I feared that my views on these matters and my experience might be considered out of date. I do not think that I am out of date on the essentials of these questions although I may be out of date on the way in which nowadays these matters are regarded by some people, especially some in the media industry and those who fill the airport bookstalls with volumes of repetitive revelations.
531 On reflection it seems to me to be fair to say that those who personally experienced the run-up to the Second World War and the War itself take a more serious view of official secrets than do many of a younger generation who are often cavalier in these matters with which they have, happily, not had experience. Their attitude is perhaps understandable and indeed inevitable but one must hope that the laxer attitudes of today, when international tensions seem to have diminished, do not prove to be damaging in the long run. Grave and unforeseen dangers certainly exist and our secrets continue to need good protection.
For the most part I find the White Paper a sensible document which it would he in the interests of all to see translated into legislation. It has enough bite in it to protect secrets which justify protection and these are clearly and I believe logically defined.
There is one matter on which I should like the Minister to comment; that is, one's concern at the frequent disparaging press notices that appear about the D-Notice system. It is said no longer to command respect and that valuable mutual trust which once operated no longer exists. I should like to know what the Minister thinks about that because I always regarded the D-Notice system, especially when it was operated by the brother of the noble and learned Lord, Lord Denning, to be a very necessary and helpful safeguard in these matters.
The White Paper also deals firmly with the defence of prior publication, which has been abused more than once, and with the special requirements of information obtained by interception, of which telephone taps are only a very minor part. It also covers—satisfactorily in my view—information exchanged with other governments and international organisations. I think that many speakers have underestimated the importance of that issue, but I shall not anticipate an important point which I understand that my noble and gallant friend Lord Carver will take up.
When the White Paper was debated in the other place on 22nd July, never more than 27 Members were present. I hope that that was an indication of the White Paper's general acceptability. It may, however, only be an indication of the fact that a Friday was chosen for the debate at very short notice. The White Paper will of course continue to be criticised by special interest groups outside, some of whose interests are not in all cases as altruistic as they would have the public believe since they arise from political and commercial considerations and not from a professed concern for freedom of information.
I shall confine my brief comments to two points only: first, the demise of the ministerial certificate, and, secondly, the proposal to entrust to juries the safeguarding of public interests. It seems to me that in the light of this White Paper it is unrealistic to expect the Government to return to the ministerial certificate. I see very clearly the theoretical objections to the signature of one Minister only, but if the certificate had to be endorsed by the Lord Chancellor it would be a sad commentary on our public life should it still not be acceptable. I think that all of us 532 in our official careers have on rare occasions met one or two Ministers whose assurances one might initially be tempted to question. However, I think noble Lords would agree that Lord Chancellors are a very different kettle of fish.
Perhaps in certain circumstances of a very sensitive subject the Government may be persuaded to hold in reserve the use of a certificate with dual signatures. I wish that I felt more confident about the Government's proposal about the role of juries. It is theoretically and presentationally attractive and will at first glance satisfy a large number of people. But the limitations of juries, to which the noble and learned Lord, Lord Roskill, referred in his report on fraud cases, give cause for worry. I believe that this worry is especially true in security cases.
I hope that the Government's faith is not misplaced. There have been recent cases which noble Lords will recall—and I do not refer to the case of Mr. Ponting—which have been little short of scandalous. Political views and prejudices have played a completely inappropriate part. But all in all I believe that the White Paper provides a sufficient basis for the early drafting of a Bill; and the sooner the better.
§ 2.9 p.m.
§ Lord Houghton of Sowerby
My Lords, for many years I was the staff representative in the Civil Service who had much to do with these and many other matters relating to staff interests. I am not speaking this afternoon in any representative capacity, although I speak from very wide experience in this and the allied field of confidentiality. In the Inland Revenue we probably had the widest area of confidentiality in the public sector. Obviously many problems arose because of that. But they all fell short of the Official Secrets Act because we were operating within the disciplines of the income tax Acts which contain their own requirement of declaration of observance of confidentiality of citizens' affairs.
I was a member of the committee on standards of conduct in public life. I was also the chairman of a small group of former Cabinet Ministers appointed by Prime Minister Callaghan to investigate the use and risks of Cabinet documents on their way round from hand to hand. The noble Lord, Lord Hunt of Tanworth, was the Secretary of the Cabinet at the time.
We have listened to some extraordinary speeches this afternoon of great authority and experience. In particular I think that we rely greatly upon the wise counsel of the noble Lord, Lord Armstrong of Ilminster. It seems strange to think of him making a maiden speech even in your Lordships' House. It seems that he has merely enlarged the agencies through which he is making his speeches on different matters, including the one with which we are dealing today.
There is a good deal of misunderstanding about this White Paper. I hope that the debates which are taking place now will get rid of them. However, in the preamble to a resolution submitted to the Trades Union Congress in September, an affiliated union asks for the approval of congress in these words: 533Congress considers that the proposals contained in the Government's White Paper on the reform of the Official Secrets Act are a thoroughly inadequate response to public concern about excessive secrecy in Government. They would leave too much information subject to the criminal law and do nothing to improve public access to information".One can hardly condemn the position in stronger words than those. It seems to me that even those who may be affected by the provisions are failing to distinguish between what this Bill sets out to do, when we have it, and what it leaves aside for later and separate consideration.
The debate on this matter is still clouded. This White Paper forecasts a Bill to reduce Section 2 of the Official Secrets Act from the general to the particular. That is virtually all that it does. It draws the boundaries of criminal responsibility for the custody of secrets and sensitive information. It therefore narrows the area in which criminal proceedings can be taken. It widens the area over which normal disciplinary procedures may operate where they are applicable. That is a great achievement considering that Section 2 has been in existence so long and has been criticised so much and that under it all kinds of difficult prosecutions have been undertaken, with some extraordinary results. Surely the first step is to define the area of responsibility for the safe custody of information which we believe should be protected.
Nobody could imagine that everybody employed in the public service should have the right under his conditions of service to breach those conditions of service and give unauthorised information to other people because he felt that it was in the public interest that he should do so. I repeat what I said when we were debating the Bill proposed by the noble Lord, Lord Bethell, earlier. I do not believe that any civil or public servant has a right to decide for himself what is in the public interest when it comes to his breach of conditions of service and the disclosure of information which he knows he is not authorised to disclose. That must be the firmest principle of public service.
We talk about the Civil Service as if it was just another job. We have to realise that constitutionally the Crown is the employer and civil servants are the servants of the Crown. Civil servants do not have a contract of service simply because they are servants of the Crown. That leaves their service, constitutionally speaking, at the will and pleasure of the Crown. That principle has run throughout every debate we have had over the years as to what is the legal status of a civil servant under contracts of employment and statutory provisions for compensation for wrongful dismissal. We have gone over all those within the framework of the constitutional theory. We must start off from that firm principle. It therefore requires some means whereby those who are in the Civil Service and feel that they are under some impulse to breach their conditions of service, have recourse to higher and independent counsel.
I speak about conditions of service. I have to call them "conditions of service" because there is no contract of service. Conditions of service are formulated from time to time as may be necessary in the interests of the public service and the public as 534 well as being in the interests of the staff themselves. There is a flexible and running process of adjusting conditions of service to the requirements of the time.
The first issue with which we have to deal is what is to happen when a civil servant feels that his conscience is so laden with concern or fear that he must do something to enable him to sleep at night because he is bearing a secret about someone else's conduct about which he feels he might explode. He must not give way to that impulse and go to the press. Nor must he give way to that impulse and go to an opposition M.P. What he must do is to have recourse to somebody who will take the responsibility off his mind and his shoulders. Other people bear responsibility besides any individual civil servant.
We now have a staff counsellor. I hope that the position is not temporary and that it is the beginning of an institution in the public service. Sir Philip Woodfield has been appointed to that position for the time being. He is somebody to whom a civil servant may go with his worries when he is up against conditions of service and he wants to transfer his feelings and responsibilities to somebody else. I believe that is good. There are channels of communication already, but all of us know, especially those who have been Members of Parliament, that people have no confidence in the establishment. They believe that the establishment will cover up. It is no good going to your chief because he will say, "I must be loyal to my chief and I dare not go to my chief". So we get nowhere.
Under the system of a staff counsellor something can be done. After all, what was the ombudsman but the appointment of an independent scrutineer who could deal with complaints against the administration which would stop the cover-up and enable a citizen, subject only to the consent of his Member of Parliament, to have the matter fully investigated.
My next point is that I do not believe there is any case for the retention, if it exists already, of the defence of public interest in a case of criminal proceedings for a breach of the law in this respect. It must be absolute and I believe that the White Paper is right in stating that the plea of public interest must be dealt with in the judgment of a court on conviction. I fear that, if there is judgment to be made on what is the public interest or on the degree of harm in particular cases, the jury is not a safe means of determining that. I believe that that is the most difficult part of the White Paper.
In a case about which we all know the jury defied the judge's direction and found a verdict of not guilty. Not guilty of what in those circumstances? There was admittedly a breach of confidence to say the least. However, it may have to be borne in the present conditions of the lack of trust in many of our established institutions.
I should like to follow up the point made by the noble Lord, Lord Greenhill, about the area of designation, not only as regards the size but the question of staff interests being considered in the process of designation. What consultation will there be with the staff interests in designated areas on the final determination of the type of post which will be 535 designated? I believe that there is ground for consultation with the staff interests concerned. It may not be an area for negotiation because of the ultimate responsibility of Ministers, but it may be an area for the most favourable approach to negotiation where that is sought.
1 want to finish so the only other matter that I shall mention is the lifetime promise of confidentiality; the Spycatcher case. I am not sure that one can carry that promise to the grave, especially if the man lives too long. I believe that a 30-year period should be imposed. After all, Cabinet documents can go to the Public Record Office after 30 years and anything that the spycatchers have to say will not cause very much mischief after that time. All those concerned in any mischief that is being held in the can will probably be dead and in 30 years the issues will belong to a different age. People will not then be interested in whether anyone tried to bring the downfall of the Wilson Administration and so forth. To be serious, I believe that there is ground for imposing a time limit.
Finally, I congratulate the noble Lord, Lord Armstrong, on his excellent maiden speech. I agree with every word that he said.
§ 2.24 p.m.
§ Lord Carver
My Lords, I should like to congratulate the noble Lord. Lord Armstrong of Ilminster. The balanced wisdom of his speech was typical of what those of us, who in the past have been fortunate enough to rely on his advice, have come to expect.
I give a qualified welcome to the proposals which the Government have outlined. I welcome them, first, because almost anything would be better than leaving Section 2 as it is; and secondly, because they go an appreciable way towards achieving a dual aim. On the one hand, they make it easier to deal with those who have disclosed something which, to use the wording of the Franks Report,is likely to cause serious injury to the interests of the nation or endanger the safety of a citizen of the United Kingdom and the colonies".On the other hand, it removes the threat of prosecution from those who might disclose information derived from government service which, although it might be embarrassing to the government or somebody else, could not reasonably be said to fall into that category. I welcome also the Government's brave move to allow, with certain exceptions, the decision as to whether that is the case to be made by a court of law and not by ministerial certificate.
The qualifications on my welcome arise primarily because there are a number of ways in which the proposals appear to me to fall short of the Government's stated aim of being easily comprehensible, readily applicable by the courts and widely accepted as useful and necessary. These mostly revolve around what the White Paper describes as tests of harm. I have no great quarrel as regards what is proposed for the security and intelligence services. I agree that serving and former members of those services must accept that theirs is a special case and must not be allowed to pander to the public mania for spy drama by revealing anything 536 about what they are doing or have done. And that must apply to certain individuals who work closely with them, as it must also to public reporting of their intelligence gathering or counter-intelligence activities.
It may be going too far to say, as does the White Paper, that all disclosures are harmful, but I accept that the attempt to prove in court that they are harmful might cause more harm than the original disclosure. Nevertheless, I believe that there must be some safety valve devised for a member or former member of those services who has a genuine belief that he must disclose something in the public interest. I agree with what Mr. Leon Brittan said in a debate in another place. The appointment of a staff counsellor is not enough and if an individual's request to his superiors for authority to disclose is refused he should be able to appeal to an independent body. I suggest that that might consist of a few Privy Counsellors of all parties who have held high office. Perhaps that could apply wider than the security and intelligence services and so perhaps meet the point made by the noble Lord, Lord Houghton of Sowerby.
The situation as regards the security and intelligence services could be improved if the legal and constitutional position of the services and the machinery for their supervision could be regularised and the fiction that they do not exist could finally be laid to rest.
I have no quarrel with the tests of harm to defence proposed in paragraph 49. However, I have considerable reservations about the subsequent two paragraphs concerning international relations and information obtained in confidence from other governments or international organisations. I accept that it is important to ensure that the Government's negotiating hand is not undermined and that the confidence of dealings with other governments should be respected and that we must be regarded as a secure repository of the secrets and confidences of other nations and international organisations. However, I fear that attempts to define what would be likely to jeopardise or seriously obstruct the promotion or protection of United Kingdom interests or to prejudice the dealings between the Government and the government of another state or international organisation will not only provide a field day for the lawyers but will make it almost possible for journalists to decide whether or not they can safely report what they have gleaned from their contacts.
Furthermore, to take the line that any unauthorised disclosure of information provided by other governments or international organisations on conditions requiring it to be held in confidence is automatically harmful is going too far. It has the advantage of simplicity. When the noble and learned Lord, Lord Elwyn-Jones, referred to this he seemed to think that it referred to all information and not merely information provided on conditions requiring it to be held in confidence.
I suggest that the Government should look again at these particular proposals with a view to making them more easily comprehensible, more readily 537 applicable by the courts and widely accepted as useful and necessary. As they stand, I do not believe that they would meet any of those criteria.
I am happy also about the proposals regarding information useful to criminals and interception. I support the Government's rejection of a defence of general public interest, and agree that it would make it impossible to achieve clarity. How do you in general balance the public interest in security—and there is a public interest in security—against public interest in freedom of information? It has always been no more than a matter of opinion. Everything must depend on the circumstances of the case.
I also support the Government's rejection of an absolute defence of prior publication. Of course prior publication will be an important factor for the defence but, as the paper says, it should not be conclusive.
As several speakers have pointed out, we must be clear that these proposals cover only a small area of the field of disclosure of public information—that is, that which in the Government's view should he protected by the criminal law. They are certainly not a step forward to freedom of information, nor to open government. Paragraphs 71 to 73 remind us that the Giant Clam remains very much alive in the form of the Civil Service discipline code which will be amended to make certain that what might have been protected in theory by the catch-all nature of the current Section 2 will have to be secured in future solely by the discipline code. Amendment of that code will not require parliamentary approval, and security classification of information will remain essential to its operation. Although that classification will not be binding on a court in its judgment about whether a disclosure is likely to cause serious injury to the interests of the nation, or endanger the safety of a United Kingdom citizen, it and the date on which it was applied are bound to be taken into account, particularly as evidence on whether or not the discloser and the recipient had good reason to believe that it fell into that category.
The paper rightly states that the proposals do not address such matters as that of public access to official information not covered by the proposals. There are two such areas which they do not cover and which it seems to me are bound to be affected by them: disclosures, usually in the form of memoirs by former Ministers and Crown servants other than members of the security and intelligence services, and the release of public documents through the Public Record Office. In this respect I find paragraph 32 interesting. It states:It is not necessary or right for criminal sanctions to apply to Cabinet documents as a class or to advice to Ministers as a class".I think that means advice as a class and not Ministers as a class! It also states:documents of this kind will be protected by the proposals if their subject matter merits it.How will they be protected?
Ministers and retired Crown servants are not subject to the Civil Service discipline code. I am in a somewhat ambiguous position. The fiction is maintained that Field Marshals and their equivalents are not retired but are still on the active list; though 538 regrettably not paid as such. In theory, I suppose, I am still subject to Queen's Regulations which are severe on this matter.
After the affair of the Crossman diaries, the Radcliffe Report in 1976 recommended that Ministers and senior Crown servants should restrain themselves from publishing their memoirs until 15 years after they have left office or Crown service. I believe that that recommendation was included in a confidential guide called Questions of Procedure.for Ministers. However, it was never made mandatory and several ex-Ministers—notably Prime Ministers—have not observed it.
There is a Civil Service convention that no former Crown servant should ever reveal—not just at the time or while he is still serving, but ever—what advice he or the body to which he belonged gave to a Minister, what was that Minister's reaction or what one Minister said to another. Lurking in the background to support that, once the ex-Crown servant was no longer subject to his disciplinary code, lay Section 2 of the Official Secrets Act. What will be the situation under these proposals? Linked to that is the question of the 30-year rule. As far as I know, the only reason it is 30 years is because it was for a period of 50 years before it was reduced. It may have been thought that there would not be people like the noble Lord, Lord Houghton of Sowerby, to survive long enough for it to be revealed what he did 30 years before.
Historians have to wait that inordinate length of time to find out what went on in government. They often find that it is watered down or even excluded altogether. Presumably, protection of those documents for that length of time in theory rested upon Section 2. What will be the justification for it in the future? Do the Government intend to review the imposition of that rule or its reduction to a period which would make easier the task of those who take an interest in contemporary history and who at least believe in a degree of open government being applied to the past even if it is only sparingly applied to the present? I support the Government in their reluctance to move to the extreme of freedom of information; but I am sure that a greater degree of openness and discussion, particularly before policies are decided, would make for better policies and better government. I can think of no better example than the field of nuclear weapons in which an obsession for total secrecy has led to some had policy decisions.
§ 2.36 p.m.
§ Lord Annan
My Lords, I came here this afternoon intending to make one point only, but having heard the speech of the noble Lord, Lord Hatch of Lusby, I fear that it has to be two. The noble Lord, Lord Blake, referred to Sir Roger Hollis. His reputation has been unjustly blasted by the fact that it is impossible ever to prove a negative. Circumstantial evidence can be piled up by ingenious people, but it is always impossible to prove the negative. Having listened to the noble Lord, Lord Hatch. who I am sorry to see is not in his place, exactly the same applies to his accusation about the Prime Minister. It is impossible to prove a negative. The noble Lord's 539 solution is to hold a public inquiry, I suppose under the principle magna est veritas et praevalebit.
§ Lord Annan
My Lords, I am just coming to help the noble Earl. I am not such a cynic as to think that the truth never prevails because it nearly always does, though not always. In the end the truth takes a long time to prevail. When I listened to the noble Lord, Lord Hatch, I could not help but remember how month in and month out for two years he went banging on about the "Belgrano," attempting to cover the Prime Minister with slime under exactly the same principles as he did in his speech about the Westland affair.
In this House two Admirals, the noble and gallant Lords, Lord Hill-Norton and Lord Lewin, tried to bring home to him that it was irrelevant whether the "Belgrano" was sailing on an easterly or on a westerly bearing. Sir Nicholas Henderson, our Ambassador to Washington at that time, gave it as his opinion that there was no question of any Peruvian initiative having anything to do with the decision of the Cabinet to allow the "Belgrano" to be attacked. The noble Lord, Lord Hatch of Lusby, is apparently incapable of understanding that in a military engagement the lives of our mariners and soldiers are far more important than his own degree of self-righteousness in convincing himself that everything had been done which could be done to preserve peace. I believe this matter of proving negatives is important because it concerns a great deal of what we are talking about this afternoon.
Perhaps I may now move to my second point. The noble Lord, Lord Blake, talked about the absolute rule which must prevail in our intelligence and security services that no unauthorised disclosure should ever be made by them. I am sure that no-one in your Lordships' House will disagree with that. But what about authorised disclosures? The noble and gallant Lord, Lord Carver, touched on this point, as did the noble Lord, Lord Blake. There is a danger of unauthorised disclosures precisely because it is so difficult to obtain permission for anything that is authorised.
The noble Lord, Lord Blake, referred to Sir John Masterman and said that he had to exert a good deal of pressure in order that his book Double Cross could be published. I have always understood that Sir John took the wise precaution of publishing it first in America, where no proceedings could possibly be brought against him. When that availed he was then able to publish in this country. It may well be that after a time he persuaded the security services that nothing he disclosed endangered national security.
I should like to give another example of what I think is unreasonable withholding of authorisation. During the war British officers were dropped to Resistance movements in Europe. One thinks in Greece of Colonel Monty Woodhouse and Major Nick Hammond who were both dropped to fight with partisans. They gave spirited accounts of their campaigns. Another officer was also parachuted into Greece and at that time, like Colonel Woodhouse and Major Hammond, was merely an officer in the 540 Army who had volunteered for this dangerous mission. After the war he joined the Secret Intelligence Service. When, years later, he thought he might follow the example of Colonel Woodhouse and Major Hammond, he was told that under no circumstances could he publish anything, although this operation had nothing to do with his time in the Secret Intelligence Service. To my mind that is unreasonable withholding of authorisation. It is this which induces people to break their trust, not usually by publishing themselves but, as Peter Wright did, by leaking suspicions and experiences to skilled journalists.
I very much agree with the noble and gallant Lord, Lord Carver. He is absolutely right to call for a board of some kind. Let it be small, and here I differ slightly from the noble and gallant Lord. I do not think that one needs more than two Privy Counsellors, one from each of the main parties, together with, possibly, a former head of the Civil Service and Secretary of the Cabinet, who no doubt in their retirement would be happy to have a job which only very occasionally would engage their attention.
These three men might well be able to judge whether to publish anything in a manuscript that was against the national interest. Of course the head of the service in which that officer had served would have been briefed and would come before the board with a blue pencilled copy to argue why certain things should not be disclosed. No doubt what they said would be very persuasive. However, I believe that officers have a right to a court of appeal on this matter and should not simply have to rely on the good will of the service in which they served. There is always such a presumption in the service that nothing should ever be disclosed about anything.
The practice I have outlined obtains in the United States of America. There it works perfectly satisfactorily. Anybody who cares to read Admiral Turner's latest work will see that, in the introduction, he states that he submitted his book, that certain passages were excised, but that the remainder he is glad to be able to publish.
One must recognise that there is an enormous psychological urge within us as human beings when we reach a certain age to write something about our past, so that we are not, as we think, going to be totally forgotten. It is an affliction from which Cabinet Ministers suffer. One has only to think of Mr. Crossman's diaries to realise how far some people are prepared to go, but even he had some discretion on some points, as we always have when we write.
In conclusion, all I want to say is, could we please have that point in mind when legislation is being prepared? I believe that it would be to the advantage of the state if some such body were set up.
§ The Earl of Longford
My Lords, perhaps I may ask the noble Lord a question before he sits down. In the scenario that he has in mind, if the author is an eminent former official who offers his manuscript to this scrutiny body, which asks him to leave out certain things, and he says that he will not, what will happen then?
§ Lord Allen of Abbeydale
My Lords, again before the noble Lord sits down, will he check what he said about Sir John Masterman? In Sir John's interests, it is right to have on record that he went for persuasion and not pre-publication.
§ Lord Annan
My Lords, I am glad to accept that assurance from the Lord, who is much better placed than I am to know that. I am sorry if I traduced Sir John, but he was someone who very much had the feeling that it was right that people who had taken part in those remarkably successful operations should have due paid to them by future historians.
§ 2.46 p.m.
§ Lord Ardwick
My Lords, I must not only congratulate the noble Lord, Lord Armstrong, on his speech, I thank him for adding to my knowledge. For some weeks when he was being traduced I went around the town saying that the author of the phrase about being economical with the truth was the high priest of Liberal journalism, C. P. Scott, the editor of my former newspaper the Manchester Guardian. I now learn that the cunning old man lifted it from Burke without any acknowledgement. Another of C. P. Scott's dictums went through my mind:It is well to be frank; it is even better to be fair".In the context of this debate, it is well to be frank; it is even better to be Ferrers.
I wish to take up a point made by the noble Lord, Lord Greenhill, who referred to the D-Notice system, and ask why it is not working well. I was horrified to learn from the debate in the other place that the D-Notice mechanism is now a mere photocopier of complaints which it passes on to the appropriate official of the Ministry of Defence. The D-Notice Committee in my day was an effective body. Perhaps we were conditioned because it was immediately after the war and we were used to the excellent benevolent wartime censorship. We also had the notable Admiral Thompson who was always on the side of publication. He always came to our help and tried to persuade the defence people that it was essential to publish if publication was not harmful.
I was also upset by what the noble Lord said about newspapers commercial interests in the widening of such freedom. There is a certain commercial interest, but it is minor. It is a question in which the serious newspapers are interested. They take themselves seriously. They take their idea of how the press should behave and what its function is very much in the terms that the noble Lord, Lord Hutchinson, mentioned earlier. I hope that the Government take notice of what he said about the function of newspapers in a democracy.
I must declare an interest, although alas not a pecuniary one. I speak as chairman of the Press Freedom Committee of the Commonwealth Press Union, an organisation which embraces the principal newspapers of the Commonwealth, including most of the national and provincial dailies in this country. I must quickly add that there is no collective view on 542 this White Paper. Yet newspaper people and their brethren of the electronic media share with members of the opposition parties, civil servants, spies and spycatchers a special interest in this White Paper.
Of course the general public too have an important interest since it prescribes the limit of information which they may receive. That is a good deal smaller than it should be, although, as another noble Lord pointed out, a too-liberal White Paper would he against the national interest since there are some secrets which it is in the national interest to protect. Only in the wine bars of Fleet Street —a Fleet Street which has departed—and then very late at night have I heard it suggested that Section 2 should be abolished and nothing at all put in its place.
However, the newspaper men, or perhaps I should say newspaper people, have a special interest because they are often the receivers of disclosures. They not only publish them at their peril; they also receive them at their peril; for under the existing Act it is an offence merely to receive unauthorised information from government sources, just as it is an offence to give it. A good newspaper, it is said, is a collection of official secrets interspersed with defamatory statements and contempts of court. Newspapers are always in legal peril, yet always survive. But life in them, I can assure noble Lords, is often very tense.
The time is long overdue for a reform of Section 2 and the Home Secretary's White Paper was received by serious newspapers with some respect if not with rapture. The consensual verdict seems to have been, "Better than we expected from this benighted government, yet not nearly good enough". Although it was trounced in theMirror and wittily mocked in the Guardian, the Telegraph, The Times and the Economist gave the Minister instant hope that the subsequent Bill would not meet the miserable fate of its predecessor in 1979. The Telgraph welcomed the measure, which it said "seems genuinely reforming" and though "not open government, American-style, is a step towards common sense".
They appreciate the proposal to reduce the sanction of criminal law which now hangs over the disclosure of any information from Whitehall and confine it to the six clearly defined categories of secret. They thought that a conviction on matters relating to defence would be harder to obtain since the prosecution would have to prove to the satisfaction of the jury that actual harm had been caused by a particular disclosure. The Crown servants would be presumed to know that harm could result from their disclosure. In the case of a journalist, the prosecution would have to prove not only harm but also that the journalist knew or could reasonably be expected to know that harm would be likely to result.
Although the White Paper refuses to consider a public interest defence, it goes on to visualise,an argument as to the effect of disclosure taking place within the context of the proposed damage tests where applicable".That I think is something to be welcomed.
Nevertheless, as has often been remarked this afternoon, there is disappointment that the Home Secretary did not go further and propose a defence of public interest. Nor will an absolute defence of prior 543 publication be available, although again it will be possible, I presume, to plead that the harm the prosecution alleges has been done is to be set against the gain to the public interest. Surely this would mean the abandonment of its case or would have meant the abandonment of its case by the Government quite early in the Spycatcher saga. But the fact that the newspapers did not greet the White Paper with cold fury has led some of their sterner critics into the belief that the newspapers were the victims of a cunning governmental manipulation of the news.
A day or two before the White Paper was published, it was being put about and printed that its terms would be extremely severe. So, when the innocent editors of Fleet Street and their ingenuous in-house lawyers looked at the White Paper they were so pleasantly surprised that their critical faculties were numbed. However, I find that rather hard to believe. The Times stated:The proposal for eternal secrecy might command wider assent if the Government were to accept that executive management of the secret agencies demands external oversight of some kind".The article continued:That is Mr. Peter Wright's legacy".Indeed, it is his legacy. If Mr. Wright's major allegations were found to be true, how could we be sure that if ever something of the same kind were to happen again it could be brought to the light of day, examined, debated and the wrong put right? It is going to be a crime for any employee of the secret services ever to make any statement to anyone, save the staff counsellor, I suppose, about something that might be going wrong in his department. Surely the Government must think again about their exclusion of the public interest.
Over all these absolute offences a stale odour of Section 2 seems to be lingering. The Government must think again about their exclusion of the public interest defence. The White Paper's argument against it is pathetic. This is not a subjective matter. It does not concern someone's conscience that has to be appeased but a fact that would have to be proved. If an employee discovers iniquity, that iniquity, if proved, is a fact. It is a fact which might disturb all our consciences. We might all deplore it, but it is not something to be deplored by the idiosyncratic mind of some official.
Although there is a case for protecting the confidence given by one or two foreign governments on defence, intelligence and security, the wider category of information about international relations is vague to the point of absurdity and should be swiftly dropped. I do not know how on earth an editor could know that a dispatch that he has received from Washington or Bonn reveals a confidence between the Bonn Government and his own government. That would seem to me to make a good deal of journalism a nonsense.
It is regrettable that this White Paper should be discussed in both Houses on a Friday and on the final day of term. Nevertheless, it is splendid that on this last day this matter is taken so seriously, and that so many noble Lords have wished to speak on it. In another place it was most regrettable that the brief 544 debate on this subject had to end at 2.30 p.m. It had to end before the final government speaker had concluded his speech.
One feels that the Government, as my noble friend on the Front Bench put it earlier, need more of the wisdom and experience of both Houses before they proceed with the very difficult task of legislation. This House might perhaps use some of its time in the autumn, not to discuss the White Paper—because that is out of bounds—but to discuss some of the individual questions which are on the periphery of the White Paper but yet are relevant to it and to the Bill which is to follow.
§ 3 p.m.
§ Lord Knights
My Lords, perhaps I may also congratulate the noble Lord, Lord Armstrong of Ilminster, on his maiden speech. Having served under his chairmanship on many occasions when he was at the Home Office, I share your Lordships' pleasurable anticipation of further discussions in which he will join in the House.
As the noble Earl, Lord Ferrers, said in opening our debate, this is the third occasion in just over three months when your Lordships have debated this topic. That is a measure of the difficulites faced by successive governments over at least the past 20 years in finding a balance between on the one hand, the conflicting requirements of openness in their affairs which is a prerequisitie of a democratic government and, on the other hand, the need to keep secret matters affecting the safety or tactical advantage of the state, as the noble Lord, Lord Franks, put it in his 1972 report.
In April of last year your Lordships discussed a Bill which, if I may say so, everyone knew would not succeed. To that extent, the discussion on that occasion might have been thought to have been somewhat academic. However, today is different. This is stage in a process which is intended to lead to a statute. It is vital that we should succeed in that. Patently we can go on no longer with the present discredited arrangements.
The arguments for change which have been rehearsed so frequently may well be right. I am sure that the vast majority think that they are. Therefore, change cannot be delayed any longer. There is far too much confusion abroad. In the present situation, secrets which ought not to be disclosed are at risk. Against that background, I believe that the White Paper represents an acceptable way ahead. It removes the threat of criminal proceedings from a whole mass of information while ensuring effective protection of those matters which, in the interests of the state and the public, must be kept secret.
As regards those matters which will be outside the purview of the criminal law, clearly the business of the Government cannot be conducted in a goldfish bowl. I submit that it is right that it should be a disciplinary offence (as I believe it already is) to disclose much of that without authority. It will be interesting to see in due course how it is proposed to define that information which, if improperly disclosed, while not involving criminal conduct, could still lead to discipline and indeed to what levels 545 of management the authority to disclose what kind of information will be delegated. That will be the time to consider freedom of information, which Members of this House wish to bring together in the Bill. My personal view is that to try to put the two together will only lead to confusion.
I have no doubt that there will be difficulties in that process. I am particularly concerned that in that area, when a person unlawfully discloses information for which he can be disciplined but not prosecuted, unless corruption can be proved there can be no control on the person who receives it other than his own sense of integrity and loyalty. Experience has taught us not to rely too much on those matters. Leakage of budget secrets is a good example. It seems somewhat unfair that a Crown servant could lose his job for disclosing such information but the person who publishes it is under no restriction.
There is clearly considerable opposition to the Government's decision not to bring in a general public interest defence, albeit only in the restricted field of suspected crime, fraud, abuse of authority, neglect in the performance of official duty or other misconduct. I support the Government's line, although I agree with the noble Lord, Lord Hooson, that in practice such a defence will still obviously be deployed and juries will be invited to accept that the disclosure, far from being against the public interest, was the reverse. I should be surprised if a good many juries did not accept that argument. I do not see that, however, as a justification for statutory provision for such a defence.
Indeed, proving to a jury the harm to the public interest in those cases in which the new proposed law will require it will not be an easy matter. It will have to include evidence from a responsible member of the department concerned as to the reasons which support that conclusion. I share the anxiety expressed by the noble Lord, Lord Hunt of Tanworth, about the obvious risks we run here. However, in view of the dislike of the ministerial certificates it is a risk which I think that we shall have to accept.
I agree too with the decision riot to include a public interest defence. I do not believe that anything but difficulty will arise as a result. I do not believe that a conspiracy could ever exist of the kind which would be necessary if an officer who wished to disclose matters of the kind we are debating found it impossible to do so.
However, I believe that the decision not to include a public interest defence is likely to be accepted only if there is seen to be a clear alternative. That raises the question of the present staff counsellor system. It seems to me that some recognition of that system in the statute when it is produced may be necessary. It is all very well saying that the concerned member of staff can turn to his senior officers, perhaps to his Minister, to his MP, and, failing all of them, turn to the staff counsellor. It seems to me that all those disclosures could themselves be said to be unlawful unless it is possible to give the necessary authority by way of some departmental standing order.
What of the staff counsellor himself? what authority does he have, or will he have, to pass on the information to, say, the police unlawfully? He will 546 obviously need to pass the information on to someone if he is to investigate the allegations which have been made to him. So I believe that that issue must be addressed and put on a proper footing rather than left on the present somewhat ad hoc basis.
I hope that I shall not be accused of being somewhat parochial if I also find problems with the paragraphs in the White Paper dealing with the disclosure of information relating to security and intelligence. In the absence of any definition of security and intelligence I assume that it means the work and activities of and in support of the security and intelligence services. That was the definition included in the Bill presented by the noble Lord, Lord Bethell, which we discussed three months ago.
I assume, I hope accurately, that that definition does not include the police. Yet they, or certainly some members of that service, operate in a similar field, particularly that of terrorism. Indeed, the body charged with collecting, collating and disseminating intelligence about the activities of the IRA on a national basis is not the security service; it is the Special Branch of the Metropolitan Police. The Royal Ulster Constabulary are also, of course, intimately involved in that work.
As I read the White Paper, if there is unauthorised disclosure of information from their files and records touching on terrorism or subversion, any prosecution will turn on whether it can be shown that the information will be likely to be useful in the commission of offences, or to terrorists, or in helping a prisoner to escape from custody. That may not be possible without producing evidence which is as harmful as, or more harmful than, the disclosure which is the subject of the prosecution—the reason advanced in paragraph 39 for providing special treatment for the security and intelligence services. I hope that the noble Earl may be able to give me some help in that regard when he replies, as the alternative may well be that no prosecution could be brought.
Finally, I should like to turn to the proposal that officers of the security services should be placed under a lifetime's ban for making disclosures without authority. I believe that this is right. At the same time it seems to me that there should be a more acceptable system of granting authority to disclose in suitable cases. Several noble Lords have enlarged on that issue and I do not wish to add anything other than to say that a 30-year period seems to me to be somewhat unsuitable. Unless people retire early, very few of them will live long enough to do any writing.
My earlier comments about the police and their intelligence are also relevant. There are members of the police service who are also in possession of considerable information about the security services. It is inevitable that it should be so, considering how closely they have to work together. Will such officers be designated as described in paragraph 47? If so, in the light of the constitutional position of the police, who will take that decision? I believe that the recent Stalker affair clearly underlines that this is an area which requires further consideration.
There are several other matters which call for comment at later stages of this discussion, but I conclude as I began. I believe that the White Paper 547 which your Lordships are being asked to note today spells out in a sensible way how to deal with a very complicated matter of law and practice. I suggest that it provides a very good foundation for the Bill that is to follow.
§ 3.11 p.m.
§ Lord Jenkins of Putney
My Lords, I should like to join in the congratulations to the noble Lord, Lord Armstrong, on his maiden speech. I should also like to congratulate him on his appearance this morning on "Desert Island Discs". He and I have long shared an interest in the arts, and music in particular. I felt that his choice of records was very much the choice that I myself might have made or something similar. I disagreed with him only on one point; namely, when he decided that "Figaro" was the best opera of all time. Certainly it could be put in the top ten but to make it top of the classical pops, as it were, was perhaps being a little extravagant with the truth.
I think that Spycatcher produced one result. I do not know whether the noble Lord would have been chasing off to Australia of his own free will. There is no greater compulsion than that which the notion of duty places upon us. When we feel that we are bound to do something, we are compelled in that direction and we have to do it. However that may be, I believe that Spycather performed a valuable service and that it was a pity the Government decided to try to suppress it, especially as they so notably failed. It exposed the utter chaos that exists within the security services. More then anything else could have done, it showed the absolutely urgent need for some means of public accountability. And that, as my noble and learned friend Lord Elwyn-Jones said, is sadly missing from the Government's proposals.
The element of public accountability has become absolutely vital at a time when, obviously, things have gone badly wrong. I believe that they will continue to go badly wrong while the secret services are subject to nothing other than their own concepts which on occasion can be shown to be completely deplorable. For example, although it was not officially decided upon it is now pretty well known that among a substantial section of the secret service there was quite a strong body of opinion at a fairly high level which wanted to attempt—what is the word?
§ Lord Jenkins of Putney
Yes, that is a good word. I was going to use the words "a coup" but they are too strong. To destabilise the Wilson Government is the phrase. When we have an organisation which is going in for that sort of thing—and in a moment or two I shall demonstrate some of the other things that it got up to—then it urgently needs attention.
One of the arguments against public accountability is that it is very difficult. However, it is shown that it is not impossible. In particular the Prime Minister has taken the view that there is no effective and reasonable way of bringing the security services under any element of parliamentary control. 548 However, it is interesting to note that when advocating that the Frank Committee should investigate the Falkland matters, in a research note prepared for the House of Commons she said:A Committee of Privy Councillors can be authorised to see relevant departmental documents. Cabinet and Cabinet Commitee memoranda and minutes, and intelligence assessments and reports, all on Privy Councillor terms".That was one occasion when the Prime Minister was saying that this could be done. After it had taken place, she said that,the committee was provided with all the papers relevant to its terms of reference, including a comprehensive collection of reports from the intelligence agencies".However, on another occasion, when replying to Mr. Nicholas Soames, MP, she said that the proposal for public accountability by a committee of Privy Counsellors had been considered before and rejected, adding:I believe that the reasons for its rejection were the same as they are now".We therefore have a position on which the Prime Minister has taken different views from time to time, just as the noble Earl, Lord Ferrers, said, in introducing this report. The Government have changed their mind on one matter. It is my hope that we shall he able to persuade them to change it on this important matter and to tackle the difficult problem of public accountability as they have bravely tackled the problem of Section 2. I believe that that is vital if we are not to continue to go through the business of uncovering the stones of the intelligence services and finding some very nasty things lurking underneath.
I recognise that we have been very secretive. Of all the western developed countries perhaps we have been the most secretive. It is difficult to get out of secretiveness because it creates a certain camaraderie. It is difficult to break through. People find themselves doing things they have to do according to their duty of which they may be doubtful.
I apologise to the noble Lord, Lord Hunt, for not telling him that I was going to mention his name. The fact occurred to me only when the noble Lord, Lord Carver, was speaking. I sent the noble Lord, Lord Hunt, my relevant memoirs on ceasing to be arts Minister. In the course of his duty he was compelled to look at them, and to write to me to point out that I had mentioned exchanges which had taken place between myself and civil servants and between myself and other members of the Government, the Cabinet and so forth. All this, strictly speaking, was "out" so far as concerned those memoirs. I replied that I thought the role of arts Minister was just the one from which these kinds of exchanges could be exposed without the slightest risk to national security. I should not have been at all surprised if he might have agreed with me.
In the book I talk about these very civilized exchanges and explain why, if one wished to say what needed to be done, one first had to say what was wrong in order to try to say what had to be done to cover that wrong. All of us are to some extent in the grip of practices that we might like to change. I should not be surprised if the Government did not come forward with some proposal for creating more effective parliamentary accountability—whether by 549 Privy Counsellors or others. I should not be surprised if it were not welcomed by all sides of the House. Without such a proposal all kinds of things can take place.
There was the peculiar affair with regard to the Campaign for Nuclear Disarmament with which I was bound to be involved. It was a very funny business in which, at a time when it was supposed that there was only one authorised telephone check, much unauthorised telephone checking was simultaneously taking place. It was not only the man who was authorised to be checked who was checked and burgled, but I myself was telephone checked and my flat was burgled. And that was the case for more than one member of the Campaign for Nuclear Disarmament—
§ The Earl of Longford
My Lords, simply on the point of curiosity, was the noble Lord checked in an authorised manner, an unauthorised fashion, or both?
§ Lord Jenkins of Putney
My Lords, perhaps both. If one is telephoned by a person who is the subject of an authorised check—I was telephoned by John Cox who was the authorised man—is one being checked on an authorised or an unauthorised basis? If one rings him one can ask whether the check on the conversation is authorised or unauthorised. It is a difficult question to answer.
These things occur. I was reading Public Law in the spring of 1987 which examined this question in some detail for the first time. The matter had been before the courts. The report said:It has become routine for misleading accounts to Parliament of intelligence disasters to he corrected only when the press can no longer be restrained from exposing matters further. From the background of the CND case, confidence in ministerial control appears equally misplaced".The report concluded:If, as these cases show, the courts refuse to enable alleged wrong doing by the Security Service to be exposed by litigation, and at the same time prevent the press from doing so, the result is …a Security Service which is de facto above the law. There can be no clearer reason for public disquiet at this state of affairs than the facts of these two cases. Whether the result will be the establishment of an effective means of political scrutiny, capable of commanding public confidence and remedying the defects of the law, remains to be seen".That still remains to be seen. It is my hope that we shall not leave this report and the Bill to follow without tackling, as the Government have bravely done, not only some of the existing defects in Section 2 but also this fundamental problem and to bring it under some form of parliamentary control as in other countries which are also parliamentary demorcracies as we are. If we put our minds to it we can do it ourselves. If we were to do so I am sure we would do a service not only to ourselves and to the press, but also to the secret service itself. As it exists it is an organisation which badly needs looking at, to say the least of it.
There is one final point to be made. We live in a rather strange world in which we seem to accept things as they emerge. Sometimes when they emerge they show that we live in a society which still has an establishment and a non-establishment. Many Members of both Houses have at some time had 550 something to do with the secret services. An examination has taken place which reveals one remarkable fact. It is that all the people who have been on the side of the secret service, in the sense of having been memebers of the secret service or having acted in the secret service, are on the Government side of the House. All those people who have been examined by the secret service and who have endured the misfortune of being investigated have been on this side of the House. This is a fact which states something about the nature of our society; and the sooner we do something about it the better.
§ 3.25 p.m.
§ Lord Bonham-Carter
My Lords, before I say anything else I have been asked by my noble friend Lord Hooson to make his apologies, which he failed to do. He had to leave the debate early because of a long-standing commitment.
This has been an extremely interesting debate. I speak after the ground has been well trodden and I shall try to avoid being unduly repetitious. However, I cannot guarantee that I shall succeed in that venture. The White Paper, which has been in gestation for nine years, deserves debate in both Houses on days other than Friday. It is an exceedingly important subject and I am sure that other noble Lords would have liked to be present had they had the opportunity to do so.
I should like to join with other noble Lords in congratulating the noble Lord, Lord Armstrong, on his maiden speech; on succeeding Dame Edna Everidge on "Desert Island Discs"; and on the controversy he has aroused as to the true attribution of the phrase "economy of truth". We have had C. P. Scott and Edmund Burke. I always thought that it was Saint Thomas Aquinas in the Civitatis Dei when he was defining the difference between a lie and something which was not a lie who described as practising economy of truth when one does not tell the whole truth but does not actually tell a lie. I hope that as a result someone will come forward with an authoratitive attribution of this interesting concept.
Another point about the noble Lord's speech has not been mentioned so far and I believe that it shows the rather odd, skewed nature of politics in this country. I am sure that in his view he was doing his best to make a non-controversial speech. According to my book it was as controversial as it could possibly be. However, wholehearted support of the Government. if the Government are Conservative, is not regarded as being controversial. That is a common factor which goes unnoticed in many of our discussions.
I start from the proposition mentioned by the noble Lord, Lord Jenkins of Putney. It is that this country has far too much secrecy in all its activities. Only yesterday the Select Committee in another place mentioned the secrecy with which the plans to privatise electricity are being undertaken. From 1688 to 1889 we had no Official Secrets Act. We managed to get along quite well and we collected a huge empire in the process. As my noble friend Lord Hutchinson has said, in 1889 a public interest defence was introduced and it was diluted in the 1911 Act. Now 551 in 1988 it will be abolished and I do not know whether noble Lords regard that as a sign of progress.
At the same time the United States, Canada, Australia and New Zealand have freedom of information laws. Those countries appear to survive not too badly without the restrictions set forth in this supposedly liberal White Paper. I must confess that I agree with the noble Lord, Lord Armstrong, in thinking that a freedom of information Bill is not a natural part of an Official Secrets Bill. I believe that they are two different things but that they are complementary. If one has official secrets legislation one must balance it with freedom of information legislation.
I am disappointed to find no reference in the White Paper to the need for such complementary measures. There is no reference to the need for citizens in a democracy to be informed. There is no recognition of the difference which exists between the Government's interest and the public interest. I was interested to hear a succession of speeches in which, one after another, distinguished civil servants, heads of the Civil Service, Cabinet Secretaries, a field marshal, a head of the Foreign Office and a senior policeman never made a distinction between the public interest and the Government's interest. There is a tension between them and it must be recognised. The Government's interest is not always the public interest.
It is inevitable that in government it will seem that their interest is the public interest. However, perhaps I may take the example of Northern Ireland where there has been bitter conflict about the way in which the news should be treated by the BBC. It is obvious to the Government in Northern Ireland that media coverage should be used with the greatest restraint, not to say self-censorship. On the other hand, it is most certainly in the public interest that we have as much information as possible about what is happening and are informed whether there is a shootto-kill policy in dealing with IRA terrorists. Is there or is there not? If there is, who authorised it? That tension exists and cannot be doubted.
As between the two interests where they conflict it seems to me that, inconvenient though it may often be in a democracy, unless there are very good reasons to the contrary, the superior interest must be the public interest. After all, the Government are responsible to Parliament and Parliament is responsible to the electorate. The electorate cannot make judgments unless it is fully informed.
The White Paper clearly represents in certain respects, as many noble Lords have said, advances on Section 2 of the 1911 Act—and goodness knows, so it should. However, the claims made for it by the Home Secretary in another place seem to me slightly over the top. He described it as an earthquake in Whitehall. I do not believe that its Richter rating would be quite as high as that in Whitehall. As several noble Lords have said, it rejects the idea of a public interest defence in paragraphs 58 to 61; and that should be taken in conjunction with paragraph 41, which states that unauthorised disclosure of information by members or former members of the 552 security or intelligence services is harmful and ought to be criminal. That is one of the blanket prohibitions to which my noble friend Lord Hutchinson referred.
It seems to me that if that is written into the law, it will produce some rather odd results. As I understand it, it would mean that the contribution of the noble Lord, Lord Dacre, to "My Country Right or Wrong" might be regarded as a criminal offence. Perhaps I may go further back. The noble Lord, Lord Greenhill, was talking about respect for secrecy being greater in those who remember the war than in those who were born since the war. What would have happened before the war to those people in the Civil Service who briefed Mr. Churchill and Duncan Sandys about the deficiencies in British rearmament? They were certainly leaking confidential information, and it was certainly in the public interest, as it turned out, that they should do so. And they were joined in that by no less a person than Sir Robert Vansittart, at one time Head of the Foreign Office.
It would have saved the Chamberlain Government considerable embarrassment if Mr. Churchill had not been privy to that information, but it was certainly in the public interest that he should be.
Perhaps I may take some more recent examples. As I remember it, one of the reasons for the collapse of the 1979 Bill on official secrets was that it was apparent that had it been law, the exposure of Blunt would have been made impossible or, in any event, very difficult. Moreover, the proposed law seems to me to suffer from the same defect. It puts members of the security and intelligence services in a special category which is apparently beyond parliamentary scrutiny.
The evidence which we have had over past years is that this class of person, or these people, employed in the job are in special need of scrutiny. They have plenty to hide both here in the United Kingdom and in the United States. In this country we have had Burgess, Maclean, Philby and Blunt. In the United States they had Colonel Oliver North and the Iran-Contra scandal. Are we not glad that the activities of those people were revealed? Has it not been in the public interest that the Iran-Contra scandal was revealed? Would they have been revealed under the terms of a Bill drafted on the lines proposed in the White Paper?
Let us consider again, as did the noble Lord, Lord Jenkins of Putney, the cause célèbre of our time, Mr. Peter Wright. The noble Lord raised a number of questions in his speech which deserve answers. If it is true, as my noble friend Lord Hooson said, that there was a conspiracy to destabilise the governments of Mr. Harold Wilson and Mr. Heath, it was absolutely essential that someone should have revealed it. We do not know whether that was true or false, but it could have happened. If so, one would have hoped that someone would have revealed it. Equally, if there had been a plan to assassinate the head of a foreign state, that should have been revealed. We come back to this question: under the proposals of the White Paper could any of those possibilities have been revealed? The Government's argument—
§ Lord Annan
My Lords, perhaps the noble Lord will give way for a moment. As the noble Lords, Lord Wilson and Lord Callaghan, are still alive, they are in a position to confirm or deny that story. I have always doubted whether the story as related by Mr. Wright had any truth in it whatever.
§ Lord Bonham-Carter
My Lords, the noble Lord may well doubt it, but he does not know and I do not know. I have no view on the matter. The fact that both ex-Prime Ministers are still alive does not mean that they are capable of knowing whether there was a conspiracy to destabilise their governments. They are perhaps the last people to be likely to know.
I return to the issue of public interest, which was dealt with by the noble Lord, Lord Hutchinson, in a masterly fashion. I shall not repeat what he said. Noble Lords argued that the public interest would cause confusion and difficulty, but I cannot find myself in easy agreement with them. They claim that "harm to the public interest" is clearly and easily defined. If "harm to the public interest" is clearly and easily defined, why should "good for the public interest" he so difficult? I hope that we will have an answer to that.
Finally, no examination of the White Paper can omit paragraph 51, by which it would appear to be an offence if a government official discloses anything about negotiations with other countries or international organisations. A number of noble Lords have referred to this as an extreme blanket prohibition. It would appear under that prohibition that one would he unable to reveal anything about negotiations on air routes or information on consumer protection or safety. That is a point which is of concern to the Consumers' Association.
In conclusion, it is clear that the security services which are performing extremely important, difficult and delicate tasks, are in crucial need of proper supervision. That cannot be left to governments alone. Such supervision ultimately should be parliamentary. As many noble Lords have said, some kind of parliamentary accountability is essential. The interests of governments and the public do not always coincide and therefore parliamentary control must be asserted.
Freedom of information is a complement to official secrets, and I hope that this will follow it. This White Paper represents certain advances which we must all welcome. Equally it represents some steps backwards. The blanket prohibitions come very close to reproducing ministerial authorisation. It may well produce a law which is narrower, tighter and more enforceable and therefore more effective which has certain merits.
It seems to me to be still unduly restrictive and perhaps the explanation for this is the Prime Minister's instincts. She said yesterday:I do not believe the only way to stop abuse is to expose it in the public domain".No one believes that exposure in the public domain is the only way to stop abuse, but it is one way in which to do it and one which is generally regarded as an essential in the armoury of free people in the 554 everlasting struggle which they have to wage against the excessive demands and claims of government. This White Paper makes some excessive claims. I hope that the Government will listen to our criticisms when the Bill comes up for discussion and that they will withdraw in certain respects.
§ 3.41 p.m.
My Lords, in attempting to wind up this interesting and extremely important debate on behalf of the official Opposition, it is my earnest hope and that of my friends that consideration of the White Paper before us will lead to an enactment which could have the support of all parts of your Lordships' House. It has been an interesting and important debate because of the participants, and the speeches which have been made with great authority, not least that of the maiden speech of the noble Lord, Lord Armstrong of Ilminster. My hope will be achieved if the Government live up to what they have said both in this House, through the noble Earl, Lord Ferrers, when he so lucidly introduced the debate, and what was said on Friday last by the Minister for the Home Office when he concluded the debate that took place in that House. He said:We shall have to consider a number of ideas. Next Friday, there will be a debate in the other place on exactly this issue. We would then wish to have some time to reflect on what has been said in this House and in the other place and to consider other comments that have been put to us by interested bodies and individuals, although as I have said, the weight of correspondence coming in to the Home Office on this issue is tiny."—[Official Report, Commons, 22/7/88; col. 1476.]The speeches that have been made in this House cannot be described as "tiny". The issues that have been raised are substantial. If the Government will listen to the criticism as well as to the praise, it may be that at last we can see the demise of Section 2 of the Official Secrets Act. All of us who attend the funeral will not only pay our respects to a dying section of that Act, but also our respects to a government that have secured its burial. It has been said in the course of this debate in many speeches that it would have been natural and beneficial if at the same time as noble Lords were dealing with the restriction of information that we dealt with the freedom of information. The Government have said in the White Paper that this issue is entirely separate and will have to be considered in a different way. The same thing was said in 1979. We were told then that it was a separate issue and would have to be considered differently.
Let me not appear in a white sheet and insincere. There was an opportunity for the Labour Government to produce a Freedom of Information Bill. We wanted to do so but we did not do so. There may not have been the opportunity. However, there ought to be at least the opportunity in some way, if not by enactment then by some code or by some announcement of general principles, to see that the right freedom of information is enshrined in our utterances and in our conduct of public affairs. That should be done. With great respect, it is not good enough for the Minister to say, as has been said on behalf of the Government, "Look at our conduct. You need no more than to know that we are in favour 555 of the freedom of public information". I shall not take this opportunity to criticise the Government in any way for secrecy. I merely say that it is not really an answer to talk about examples of the way one acts without considering that there is a duty not only to the present but to the future to ensure that freedom of information is enshrined in the law and certainly in utterances attached to a code which are made on behalf of the Government. It is not good enough merely to talk about restricted public information.
We have been considering the way in which we should look at the sanctions imposed by the criminal law in regard to official secrecy. I do not think we can do better than to follow the dictum of the Franks Report. At paragraph 119 on page 47, the dictum reads:We believe that most of those who have given evidence to us and most reasonable people would accept as a proper basis for the employment of criminal sanctions the unauthorised disclosure of official information which would be likely to cause serious injury to the security of the nation or the safety of the people. If criminal sanctions are justified at all, they are justified for this purpose. If they are to be reserved for what is most important, they should not go any wider. We have therefore adopted this as our touchstone".I think that your Lordships' House would want to adopt that as our touchstone when considering this White Paper.
I want to say, as I tried to do when we were considering the announcement of the White Paper and the Statement that was made on that occasion on behalf of the Government, how glad we are that something we had talked about from these Benches in 1979 and thereafter—and it had been said from other Benches too—has been taken on board by the Government and that they have moved away from the ministerial certificate which could not be challenged in a court of law. This would certify that something had been done which endangered public safety and which was contrary to the interests of the state. The Government deserve congratulations on that and they should have them.
On that very morning we were told by The Times—and I quoted the article on that occasion—that the very reverse was going to be the Government's attitude and that they were sticking to ministerial certificates. I said on that occasion, as some of your Lordships may remember, that I had come to attack the Government with all the zeal that I could command, having regard to that report. The Times, unfortunately, on the following day did not quote the inaccurate report it had made, but merely my statement that I had come prepared to attack but had ended up only by praising.
Ministerial certificate has gone, and if the Government had left the matter at that and had then dealt with the other matters that we have been considering today, with the same amount of liberality, there could well have have been, as I hope there will be after the debate, a unanimity in the House in regard to any enactment that may take place.
I shall move immediately to the subject which has been troubling many of your Lordships; that is, the whole question of whether members of the security and intelligence services should be banned for life 556 from uttering any statements, whether oral or in writing, which tell of their work, unless of course authority is given. There are two matters which I believe have worried some of your Lordships, as they do the public. The first is that we are dealing with a group of people who undoubtedly serve, in general, the national interest; who do it with tremendous courage generally; but who are just not accountable to anyone, except in a mysterious way, unseen, unheard, outside a Prime Minister's room or outside the room of a Secretary of State for Home Affairs.
That cannot be right. Perhaps I may point out how absurd that situation is. On Friday last, this matter was dealt with in another place and a Question and Answer were quoted in a speech made by a member of the Conservative Party. I cannot quote his speech. I can, however, quote the Question and Answer to which he referred. They appeared in the Official Report of another place on 11th July this year, only a few days ago. The Question was:whether he will issue a directive to the director general of MI6 setting out the parameters of lawful activity, along the lines of the Maxwell Fyfe directive of 24 September 1952; and if he will make a statement".The ministerial reply was:It has been the long-established practice of this and previous Governments not to comment on such matters".—[Official Report, Commons, 11/7/88; col. 74.]All that was being asked was whether there would be a directive along the same lines as had been published (the Maxwell Fyfe directive) and whether the Government would make a statement. Such is the cloud that covers the intelligence and security services that that Question could not be answered in Parliament. There is a necessity, one would think, for the Government, if they want to impose that ban—we do not say that that is unreasonable although we say two things—first, to see that the service is made properly accountable to Parliament on behalf of the nation.
Guard it, if you like, by having only Privy Counsellors who manage to supervise or listen to these matters of complaint or whatever they may be. It would also be wrong not to look at the question of who authorises the statements or written records which members of the security and intelligence services wish to put out in the course of their lifetime. There again, should there not be some independent body trusted by the nation? It may very well be the Security Commission itself; it is in existence. That body should be able to say on behalf of the nation that its safety is not being jeopardised by the publication in question, and therefore it is authorised.
Perhaps I may move on to a question which I have in my own mind which I should like to transfer to the Minister. If the recommendations in the White Paper are carried into an enactment dealing with members of the security and intelligence services, banning unauthorised accounts of their work, and imposing a lifetime ban if they are not authorised, we must not he led to believe that the sanction of the criminal law will always obtain. If we look at the Wright case, we realise at once that Mr. Wright wrote his account outside the United Kingdom. I ask this question in order to prevent that recurring. None of us wishes it to recur. Will this be an extraditable offence? If not, 557 am I correct in saying that we have not safeguarded ourselves against a repetition of Mr. Wright's conduct?
Lastly, I deal very rapidly with the question of the absolute ban, without any public interest defence at all, in regard to matters which affect secrets, as they have been described by the noble Earl when he introduced this debate. These arc secrets which are given to us by governments in regard to international affairs and secrets given to us by international organisations. The international organisations have not been named. Questions were asked in another place about their nature; a list of the organisations was not given.
I noticed that the noble Lord, Lord Bonham-Carter, mentioned the name of Churchill in the course of his remarks. I shall conclude by quoting just one passage from Winston Churchill's book, written as your Lordships will know under the title of The Second World War. What would have happened to Winston Churchill now or, even more, if this were a provision in the Official Secrets Act such as we have had recommended to us in the White Paper? What would have been the position of the civil servant in regard to foreign affairs secrets given by the French Government and other governments on what was happening in 1931 to 1933 in Germany in regard to the Hitler youth movement, the Nazi party, the breaking of treaties in regard to the building of factories, manufacturing armaments, and so on? I read this paragraph from Churchill's book, Volume 1, page 73, pleading, as I do, for the defence of the public interest to remain. Let us bear that in mind:I had also formed a friendship with Ralph Wigram, then the rising star of the Foreign Office and in the centre of all its affairs. He had reached a level in that department which entitled him to express responsible opinions upon policy, and to use a wide discretion in his contacts, official and unofficial … He saw as clearly as I did, but with more certain information, the awful peril which was closing in upon us. This drew us together. Often we met at his little house in North Street, and he and Mrs. Wigram came to stay with us at Chartwell. Like other officials of high rank, he spoke to me with complete confidence".I pause at that stage to remind your Lordships that Winston Churchill at that time was not in government. I continue the quotation:All this helped me to form and fortify my opinion about the Hitler Movement. For my part, with the many connections which I now had in France, in Germany, and other countries, I had been able to send him a certain amount of information which we examined together".If we did not have the defence of public good, which is the way I would rather define public interest, that civil servant in the Foreign Office could not have spoken out.
I think in terms not of peace and of normal conditions but of times of peril for this nation. If there had not been a Wigram in the Foreign Office prepared to talk to Winston Churchill, who was not in government then, what danger might have encompassed us without the voice of Winston Churchill expressed so often, so eloquently, so movingly and so patriotically in the years 1931 to 1933 and onwards? His words were based on the information given to him by a civil servant in the Foreign Office because that civil servant thought it was for the public good.
§ 4.2 p.m.
My Lords, I think that all noble Lords would agree that this has been a remarkable debate, in so far as everyone has made an effort to try to find the right solution to this problem. One can never get everything right. The noble Lords, Lord Greenhill of Harrow, Lord Bonham-Carter, and, I think Lord Mishcon said what a pity it was that this debate was held on Friday and on the last day of term, as it were. I wish to thank noble Lords for having been kind enough to turn up on such a date to contribute to this debate.
I have a great philosophy of life, which is that one can never do the right thing. All one can hope to do is the least wrong. We said that when the White Paper was published there would be a debate in Parliament. We said that we would try to arrange a debate for July. It would have been possible to leave the debate for the spill-over, but in order to try to accommodate the concern of Parliament we thought it was right to have the debate now, despite the inconvenience of its being held on the last day before the recess and despite the fact that that day is Friday.
Earlier I thought that I could see nothing in this subject which could have even a sniff of humour about it until the noble Lord. Lord Ardwick, parodied a certain dictum. The dictum was: it is better to be frank than fair. The noble Lord said that on this occasion he thought it would be better to be Franks than Ferrers. I thought that that was slightly amusing until I realised its implications. Had the noble Lord carried his parody a little further and said it would have been worse to be Franks than Ferrers, I should have found that even more agreeable. But I realise that would have been a monumental error to which the noble Lord is not accustomed.
In all this we are dealing with a subject which is extremely complicated, highly technical, very legal and very sensitive. I am not surprised to be confirmed in my view that we could not expect unanimous support for our proposals. I do not propose to defend the White Paper. That is not the object of my remarks this evening. It has been put forward as being the Government's proposals and the object of this debate is to hear what your Lordships have to say. Therefore, I shall confine my remarks to some of the more salient points which have been raised.
The noble Lord, Lord Bonham-Carter, said forcefully, as did the noble Lord, Lord Mishcon, that the interests of the Government are not necessarily those of the public. They are indeed two different interests. However, they need not be different. They may be different. I am sure that the noble Lord will accept the fact that often it is in the public interest that the interests of the Government should be protected.
I believe that the noble Lord, Lord Bonham-Carter, was also marginally ungenerous to the noble Lord, Lord Armstrong. He said that he had made a controversial maiden speech. I did not think that it was at all controversial. However, as soon as one says that the noble Lord has made an uncontroversial speech one is is accused of being controversial. Unless noble Lords who make maiden speeches are to be like zombies and express no opinions at all, it is difficult 559 to say anything to which no one will take exception. However, perhaps I may say that the contribution made by the noble Lord, Lord Armstrong, was remarkable. It was remarkable not only for what he said but also for the experience and knowledge which he has on this subject. He has had to leave to attend a meeting and has apologised for not being present.
The noble Lord made some pithy remarks. He said that we are not debating the accountability of the security services or freedom of speech. We are debating the reform or repeal of Section 2 of the Official Secrets Act. We cannot repeal that section unless there is no information which is sufficiently sensitive that it should not be revealed. Therefore, the only answer is to reform it. He gave the House his views on that matter.
One of the most controversial points which was made concerned the business of legislation and how it should involve freedom of information. The noble and learned Lord, Lord Elwyn-Jones, and the noble Lords, Lord Hutchinson and Lord Mishcon, all said that there should be a balance between official secrets and the freedom of the press and of speech. The noble Lord, Lord Armstrong, in his uncontroversial speech said that he believed that the Government are right in that matter. I understand noble Lords who take the view that those two matters should be connected. However, they are totally different subjects.
The question of what information it should be a criminal offence to disclose is separate from the question of public right of access to information which it is not an offence to disclose. We have said, and we have been criticised for saying, that as those are separate issues, we should not be concerned here with the freedom of the press or of speech or the right of access. We should be concerned with what should or should not be permitted to be disclosed.
Information which is obtained in confidence from other governments or international organisations was a point which concerned the noble and learned Lord, Lord Elwyn-Jones, and the noble Lords, Lord Mishcon and Lord Hutchinson. The White Paper explains why any betrayal of another state's confidence damages our relations with that state and others and reduces the willingness of other states to keep the confidences which we entrust to them.
If we want other governments to protect our information, I think that it is not unreasonable to say that we should protect their information. One must remember that that is not just any information which is given in confidence. If information is given by a government or government department in confidence I think that it is not unreasonable to say that that should not be divulged, if only for the reason that if we do so they will do the same with the information which we in turn give to them in confidence.
There was some discussion of, and the noble and learned Lord, Lord Elwyn-Jones, referred to, international organisations such as the EC, the World Health Organisation, and the United Nations Food and Agriculture Organisation. We are not proposing to protect the confidence of international organisations solely in the interests of those organisations. Obviously, we shall have to see how 560 far down the spectrum of internationality those organisations come.
§ Lord Mishcon
My Lords, before the noble Earl leaves that matter, I wonder whether he would deal with the point which I endeavoured to make. If the legislation follows the lines of the White Paper in regard to secret information given by one government to another on foreign affairs, would he not admit that the Foreign Office officials who spoke to Winston Churchill in the way that they did—and certainly the one whom I named—would have committed a criminal offence without having any kind of defence about public interest?
My Lords, I have no intention of giving an immediate answer, and for one good reason which the noble Lord will understand perfectly well. That is, whether or not they were guilty of a criminal offence would depend on what the law states. We do not yet have the new law; all we have are proposals which may be turned into law. One cannot possibly answer a question like that without knowing the details of the new law.
The business of the security and intelligence services has been a matter of considerable concern. I was delighted when the noble Lord, Lord Hunt of Tanworth, said that the Government had got it absolutely right. That was of great encouragement, coming from a person of his experience. That was also said by the noble Lord, Lord Armstrong, my noble friend Lord Blake and also the noble and gallant Lord, Lord Carver. It is difficult. There are others who take a different view. The noble Lord, Lord Bonham-Carter, said that we were putting people in a special category. That is perfectly true: we are. He said that they have plenty to hide: perfectly right. And they have plenty to reveal as well. That is the reason why they are put into a special category.
The noble Lord, Lord Mishcon, queried the business of the lifelong obligation of secrecy. In the area of security and intelligence it is difficult to say whether any information can be trivial. In isolation it may be, but taken with other information it may not be. In our view the rule must be that if one belongs to the secret service one must not talk about one's work. That is what the public expect of the security and intelligence services. The overwhelming majority of people in the public service take that view and are happy to abide loyally and willingly by the rule.
The noble Lord, Lord Mishcon, asked whether, if these proposals were to go foward, this would be an extraditable offence. Again, the noble Lord, Lord Mishcon, knows that the laws of extradition are extremely complicated. What happens about extradition depends on what the law says. I shall revert to the answer that I gave him before—these are only proposals as to what the law may be. What the law eventually says, and how Parliament decrees that law, is a matter for the future.
When considering the people who were attached to the security and intelligence services, the noble Lord, Lord Houghton of Sowerby, asked whether they could not divulge all their facts after 30 years had elapsed. After all, he said, they would be fairly old by 561 then. The noble and gallant Lord, Lord Carver, also queried the 30-year rule.
Responsibility for it belongs to my noble and learned friend the Lord Chancellor. He will be aware of noble Lords' views. However, before public records are released, they are read to see whether they contain material which could still do damage and if so they can be kept for a longer period. The criminal law must given an exact answer. Some secrets are still properly secret after 30 years. A simple time limit will not work. Authority to publish will enable old tales to be told when it is safe for that to be done, and I think that that is right.
With regard to that point, the noble Lord, Lord Houghton, and other noble Lords were also concerned about the people who wished to divest themselves of knowledge with which they felt uncomfortable or of instructions that they felt uncomfortable in carrying out. All members of the security and intelligence services have the benefit of access to the staff counsellor. His role is to deal with issues of conscience raised by individual members and where appropriate former members of the services. The establishment of a staff counsellor will provide Ministers, Parliament and the public with the assurance that the legitimate anxieties about the work of members of the security and intelligence services will not be overlooked or overridden.
The noble Lord, Lord Knights, asked what the counsellor will do with the information that he is given. The answer is that he will be able to make recommendations to the head of the service concerned. He would have access to the Secretary of the Cabinet if he wishes and will have the right to make recommendations to him. He will report as appropriate to the heads of the services and report not less frequently than once a year to my right honourable and learned friend the Secretary of State for Foreign and Commonwealth Affairs and to the Home Secretary and the Prime Minister on his activities and the working of the system. I take note of the fact that some noble Lords feel that there ought to be some kind of parliamentary organisation and involvement over and above that. That is a matter of opinion of course.
The noble Lord, Lord Hutchinson, asked a specific question about what happens between the security and intelligence services and the press. He mentioned a situation in which a journalist reported a disclosure by a member of the security services and was found by a jury not to have damaged the operation of the services. The noble Lord asked what would now happen in such a case. The White Paper makes clear that the reason for imposing a stronger liability on the member's disclosure is that he stands in quite a different position from anyone else. His disclosure involves a breach of trust, whereas the newspaper's disclosure does not; it carries weight because of the source from which it comes, whereas the newspaper's does not. It is a conscious principle behind our proposals that disclosure of information on security and intelligence by a member of the services is always harmful but that the disclosure of that same information by another person may not be.
562 The noble Lord then asked, "Well, will they both be tried together?" I can of course see why he asked that question—because he thought that if they were tried together they would both get off. However, whether they are tried together is a matter for the courts to decide.
§ Lord Hutchinson of Lullington
My Lords, the question that I put to the noble Earl had nothing to do with both of them getting off or both of them being convicted. The trouble about that situation—and it was the basis of the question—was that it would hardly be a good situation for two people to be tried together and for one of them to be acquitted on the basis that there was no damage at all and the other to be convicted because he could not put forward any other defence.
My Lords, I do not wish to pursue this hypothetical case too far. However, if a person is acquitted he will be acquitted of the offence with which he is charged. If he is convicted he will be convicted of the offence with which he is charged. If the two offences are different, then the results may be different.
The noble Lord, Lord Knights, referred to the Royal Ulster Constabulary and the Special Branch. The Government's proposals would treat intelligence relating to anti-terrorism as being within the security of intelligence class even though collected by the police. Police officers as such are not members of the security and intelligence services. As the noble Lord, Lord Knights, implied, in view of the special character of their work it would be possible to designate certain members of the police service. We shall be considering the posts which might be designated in the coming months.
Then there was a considerable discussion about the public interest defence. I found the words of the noble Lord, Lord Hunt of Tanworth, very succinct and reassuring when he said that it would be wrong to allow unacceptable harm to be done in the hope that good would come of it. Again this is quite a controversial subject. The noble and learned Lord, Lord Elwyn-Jones, and the noble Lords, Lord Hutchinson, Lord Morton of Shuna and Lord Ardwick, thought that there ought to be a public interest defence. The noble Lord, Lord Knights, thought that the Government were right and so did the noble Lord, Lord Hunt of Tanworth. All I say is that those who have supported a public interest defence must recognise that the Government's proposals would entirely change the context of the argument.
We are now proposing that harm to the public interest caused by the disclosure should be defined, and should be proved to the satisfaction of the court. A general catch-all defence would I think seriously detract from the clarity which we hope can be achieved by the new law.
The noble Earl, Lord Longford, asked me a specific question about how this applies to Ministers. Ministers are Crown servants. Our proposals, like Section 2, will apply to them in the same was as they apply to other Crown servants. Our proposals are 563 concerned with the disclosure of certain official information without authority. Ministers can normally be assumed to have authorised themselves. However, for former Ministers the position is obviously different. A former Minister who, without authority, discloses information which he acquired while a Minister, and which is covered by our proposals, knowing or having reasonable cause to believe that such disclosure was likely to harm the public interest would be culpable in the same way as any Crown servant.
§ The Earl of Longford
My Lords, I was raising in particular the question of Ministers who have been responsible for the security or intelligence services. Are they under the lifelong ban which is imposed on the security services?
My Lords, it entirely depends on the situation of the Ministers. I can only tell the noble Earl that the law applies to Ministers in just the same way as it applies to any other civil servant.
The noble Lord, Lord Hooson—who kindly told me he was unable to stay—asked who would authorise disclosure and on what subjects? It would normally fall to a member's service, or former service, to deal directly with him in such matters. The central criterion according to which any request must be considered is that of damage to national security arising directly or indirectly from the proposed disclosure.
My noble friend Lord Blake asked whether the White Paper presaged a more authoritarian regime for disclosure. The applications for authorisation of publications will continue to be received and carefully considered in the same way as they have been in the past. The noble Lord, Lord Greenhill, asked how many people were to be designated. We have not decided to whom the designation power would be applied. If we decide to provide this power in legislation I would expect to be able to give some indication to the House at the time as to how it would be used.
The noble Lord, Lord Greenhill, also asked about D-Notices and spoke with some warmth about the work of the D-Notice system. I am glad to be able to tell the noble Lord that nothing in the Government's proposals seeks to detract from that system. He also asked about ministerial certificates. I acknowledged in my speech that to leave the issue of harm to the public interest to be decided by the jury carries risks. But we are persuaded that that is the right course both in principle and in practice.
I am aware that many noble Lords have asked many questions and made contributions to which I have not referred. I thought that it was in the interests of your Lordships that I should try to highlight the issues which appeared to be those on which most concern was expressed. It has been an important debate and, as I said at the beginning, all the points which have been raised will be considered very carefully before we move to the preparation of the Bill. We want to get the new legislation as right as possible with as much unanimity as possible within 564 both Houses of Parliament. For the very reason that I said at the beginning, if we are too rigid in our views we shall end up with no agreement and no legislation, and the unsatisfactory status quo which we all acknowledge will remain.
It is right to say that we can never expect to accommodate every interest. The spectrum is too wide. All we can try to do is provide the best answer that we can, which I hope in due course will receive the approval as well as the consideration and no doubt the dissection of your Lordships.
§ On Question, Motion agreed to.