HL Deb 29 June 1988 vol 498 cc1603-14

3.46 p.m.

The Minister of State, Home Office (Earl Ferrers)

My Lords, with the leave of the House, I think it might be convenient if I now repeat a Statement which is being made in another place by my right honourable friend the Home Secretary on the reform of Section 2 of the Official Secrets Act 1911. The Statement is as follows:

"In a debate in this House on 15th January, I explained that the Government had since the previous April been studying possibilities for the reform of Section 2, and that I hoped to bring forward proposals in the form of a White Paper in June.

"I have laid the White Paper before the House today. We have aimed to find proposals which are effective, enforceable and reasonable. We hope to break the deadlock which has beset this question throughout its long history.

"We have taken careful note of the criticisms made of the government Bill introduced in 1979, together with comments and suggestions made since then, including in the debate on the Bill introduced in January by my honourable friend the Member for Aldridge-Brownhills. As a result, the proposals in the White Paper include some major changes, as well as similarities, compared with previous attempts at reform.

"I invite right honourable and honourable Members to read the White Paper in full. But I offer the House now an outline of the main points.

"The essence of the proposals is that it would no longer be a criminal offence, as it is under the present law, to disclose any official information without authority. The scope of the legislation would be confined to the very small amount of information which it is in the whole nation's interest to keep secret and which should therefore have the protection of the criminal law. Other information which cannot be disclosed without breaching the trust between Ministers and officials, or which a Crown servant has been instructed not to disclose, would continue to be protected by normal disciplinary arrangements.

"Only six categories of official information would be within the scope of our proposed legislation. These are information relating to defence, international relations, security and intelligence; the interception of communications; information received in confidence from other governments and from international organisations; and, finally, information which is likely to be useful in the commission of crime or in helping a prisoner to escape from custody. These are the areas which we think the legislation must cover. We do not propose that the criminal law should any longer apply to, for example, economic information, or to Cabinet documents or ministerial correspondence in general.

"Nor do we now think it is necessary for information received in confidence from firms or individuals to be covered by a general law on official secrets. The proposals thus represent a further narrowing compared with the 1979 Bill.

"We think it should continue to be an offence for any person to disclose any information relating to or obtained by interception, or any information received in confidence from other governments or international organisations. Any such disclosure damages the national interest. We accept, however, that not all information in the defence and international relations categories needs the protection of the law. We therefore propose that the disclosure of information falling within these categories should be an offence only if it is likely to result in specified damage to the national interest. Proposed tests of damage are set out in the White Paper. They are narrower and more specific than the broad test of serious injury to the interests of the nation which was recommended by the Franks Committee and contained in the 1979 Bill. They are designed to leave no doubt about the reasons for including information within these categories in official secrets legislation. The same applies to information likely to be useful in the commission of crime or in helping prisoners to escape from custody. In this case a test of damage is built into the categorisation and the prosecution would have to show that the test was satisfied.

"For information relating to security and intelligence, we propose a distinction between the position of those whom the nation trusts to carry on their work in complete secrecy, on the one hand, and of those outside the field of operation of the security and intelligence services on the other. For members and former members of these services, together with a number of other persons who work in close association with them, we propose that it should be an offence to disclose any information concerning the work of the services or to make any statement which purports to disclose such information. For other persons, however, we propose that the disclosure of official information should be an offence only if it can be established positively that it was likely to damage the operation of the security and intelligence services.

"If disclosure of information within a particular category is to be an offence only if it can be established that it meets a specified test of harm, the question arises by whom and by what means this is to be decided. The Franks Committee, and the Government in their 1979 Bill, proposed that the question should be conclusively settled by ministerial certificate. This was one of the principal points of criticism of that Bill. Others later suggested that a certificate by a Minister should be reviewable by some other person or body. Under our new proposals, however, there are no ministerial certificates. The harm likely to arise from the disclosure would be a matter for the court alone to determine on the basis of argument from the prosecution and the defence. In relation to persons other than Crown servants, the prosecution would have to prove not only that the specified harm was likely to arise but also that the accused person knew or could reasonably have been expected to know that it was likely to arise. We are putting our trust in the impartial determination of a jury.

"The abandonment of ministerial certificates and introduction of specific tests of harm for the courts to determine are major changes from previous proposals. They provide a new framework within which other proposals, made in the context of the 1979 Bill, must be considered afresh. I have in mind particularly suggestions that there should be a defence of prior publication and a defence that publication was in the public interest. Within the framework of our new proposals, we do not think it right to provide an overriding defence of prior publication. In our proposals arguments about the effect of a second disclosure are for the judgment of the courts within the ambit of the specific tests of harm set by Parliament. It would be possible on this basis for the court to conclude that further harm was unlikely to arise from the disclosure in question because there had been a previous disclosure which had already caused the harm. But we think it would be wrong to rule out the possibility of prosecution altogether, just because the information has already been published elsewhere—perhaps in different form to a different audience. Nor do we think it right to introduce the uncertainty into the law which a public interest defence would inevitably entail.

"These are the main features of the Government's proposals as set out in the White Paper. They represent a considered attempt to find the basis for a wide measure of agreement in replacing Section 2, which all of us wish to do. If carried into effect, they should dispel any notion that the criminal law is being used to protect information simply because its disclosure would be embarrassing to governments, still less so merely because it is official information. But the law must firmly address the problem of disclosures which are truly damaging to the public interest and provide clear and enforceable definitions and procedures to enable this to be done.

"It is the Government's wish that the House should have an opportunity to debate the proposals before they are put into legislative form. We shall also take careful note of views expressed outside this House. We shall then want to move to early legislation to introduce a fair and effective alternative to Section 2."

That concludes the Statement.

Lord Mishcon

My Lords, the House will be grateful to the Minister for that Statement. I listened to it with some pleasant surprise. Having read The Times of this morning, I had prepared myself for a violent denunciation of the Government's proposals in view of the fact that it has a headline: MPs' alarm at secrets reform". I thought that the Government had learnt no lesson at all from their previous but recent experience when I read there: The Government's attempts to reform the law in 1979 foundered on the issue of ministerial certificates". and then: The main focus of concern was the possibility that ministers would be given sole power to decide whether certain information, if published, would be damaging to the security of the state". My teeth have been painlessly extracted by the Minister. I merely say that it is gratifying to know that those of us who criticised the 1979 Bill upon that basis find now that their criticism has at least been listened to by the Government. To that extent and, I hope with a little graciousness, I congratulate the Government upon that result.

There was no doubt about the fallibility—if I may put it that way—of Section 2. Those of us who have had the opportunity over the past few minutes to read the White Paper found these words in paragraph 8: The drafting of Section 2 is archaic and in places obscure, but the central objection is to its scope. It penalises the disclosure of any information obtained by a person holding office under the Crown or a Government contractor in the course of his duties, however trivial the information and irrespective of the harm likely to arise from its disclosure. The catch-all nature of Section 2 has long been criticised". I do not think anyone could have put that in better language when describing the situation under Section 2, which at present is in force.

It is a great relief to know that under the proposed legislation there will be only one adjudicator of damage to the nation, and that will be the judge in directing the jury and the jury in making its decision. That is a happy outcome of the various deliberations and debates that have taken place.

I do not want to say any more other than to refer to the last paragraph of the Statement where a promise is made that the White Paper will be debated in both Houses of Parliament in July. Having listened to the exchange which took place at the beginning of the proceedings of your Lordships' House, I am left in some doubt as to the adequacy of the time that may be found in July. I merely ask, knowing full well that this is a matter for the usual channels, whether the Minister can confirm that that is a firm date—if I may use that expression—and that whenever that date is reached, full time will be given to the House to debate what obviously is a most important matter for the nation.

My concluding remark is that it appears from the White Paper that although information which is circulated can be the subject of prosecution under the criminal law, there is not a word about what information ought to be available to the public in regard to matters which concern them. One would have hoped that that was covered in some way by the White Paper so that there was an entitlement to information as well as to a prosecution where information is passed on. I merely note that omission with some sorrow.

4 p.m.

Lord Harris of Greenwich

My Lords, I wish to join the noble Lord, Lord Mishcon, in thanking the noble Earl for repeating the Statement and in saying that I think it is right to acknowledge that the Statement was a great deal better than we had been led to expect. Perhaps I may ask a number of specific questions relating to it, bearing in mind that one has obviously had very little opportunity of looking at the detailed provisions of the White Paper.

First, is the noble Earl aware that we certainly warmly welcome the dropping of the catch-all provisions of Section 2 of the 1911 Act which creates a criminal offence in disclosing any official information without authority? That is clearly right. The provision, as I think we all recognise, was an absurdity. Quite apart from anything else, it was increasingly difficult to obtain convictions in courts before increasingly sceptical juries. I think it is right to acknowledge that the new provision would have made it impossible to prosecute an official like Sarah Tisdall, the young woman who was sent to prison for the disclosure of information which the prosecution acknowledged did not in any sense represent an official secret. That being so, we welcome this provision. We also welcome the fact that officials who improperly disclose information, as she certainly did, will be proceeded against under the appropriate Civil Service regulations. That is clearly right.

Secondly, is the noble Earl aware that we also welcome the proposal in the White Paper that the criminal law should no longer apply to the disclosure of economic information or, and I quote the noble Earl's Statement, "ministerial correspondence in general"? Will the noble Earl help us a little about what the qualification "in general" amounts to? We certainly welcome the fact that this means that the disclosure in the Westland case would not now amount to a criminal offence. Here again we believe that obviously if officials or anyone else behave with gross impropriety, as they clearly did in that case, appropriate action should be taken against them.

Next, we welcome unreservedly the abandonment of ministerial certificates. I think all of us recognise that this was one of the most unsatisfactory features of the 1979 Bill. Also we support the accompanying introduction of specific tests of harm for the courts alone to determine. This is something which, I think, is a major improvement. As I have indicated, we welcome it without any reservations at all.

Finally, is the noble Earl aware that we are deeply disappointed that the Government have refused to adopt the proposal in Clause 7 of Mr. Shepherd's Bill? The noble Earl will recall that this featured in our debate in this House and that Mr. Shepherd proposed a defence that a disclosure was in the public interest in so far as the defendant had reasonable cause to believe that the information concerned indicated the existence of crime, fraud, abuse of authority and neglect of official duty. That defence would only have been available, as the noble Earl will recall, if the defendant had taken all reasonable steps to draw these matters to the attention of the appropriate authorities. Is the Minister aware that we very much regret that the Government have not adopted Mr. Shepherd's proposal?

As I have indicated, we think that what the noble Earl has said on this occasion is a substantial improvement on what has been said by Ministers on previous occasions on these matters. However, given some anxiety on some aspects of what has been said today by his right honourable friend, I think we need an early debate. As the noble Lord, Lord Mishcon, has indicated, we recognise the state of pressure on parliamentary time at the moment. But as the Home Secretary has indicated that there is to be a debate in the House of Commons, we very much hope that we shall have a debate in this House. Given the expertise that is available here on matters of this kind, it would be profoundly unsatisfactory were we not to have the opportunity of such a debate.

I very much hope that the noble Earl will discuss the matter with his noble friend the Leader of the House so that we can have a debate, if not before the end of July, certainly in the spill-over Session. We want to receive some assurance that the Government will not take up a final position on the Bill before that debate takes place.

Earl Ferrers

My Lords, I am most grateful to both noble Lords for the welcome which they have given to this Statement. I am sorry that the noble Lord, Lord Mishcon, had prepared himself for a castigatory speech, only to find that the Statement was not quite as bad as he had expected. In fact, I think he would agree that it was agreeable to him. It just shows that the newspapers are not always accurate—even such papers as the noble Lord reads. However, I am grateful to him for giving a welcome to the Statement.

The noble Lord, Lord Mishcon, referred, as did the noble Lord, Lord Harris, to whether there should be a debate. It is the Government's intention that there should be a debate in this House. It was the Government's intention, as was mentioned in the White Paper, that it should be during July. As the noble Lord, Lord Harris, generously pointed out, obviously there are certain problems with regard to the timetable. Whether the debate is before July or in the spill-over is a matter for negotiation within the usual channels, but it is our intention without question to have such a debate.

The noble Lord, Lord Mishcon, said that this Statement on what to do with Section 2 of the Official Secrets Act refers to what information should not be published. It does not refer to what information the public is entitled to receive. The noble Lord said that that was an omission in the White Paper. I have no doubt that that was because the noble Lord had not had the benefit of reading the White Paper with quite the thoroughness which is his normal custom. I do not blame him for that because time was short, but he will see that in paragraph 5 the White Paper says: This White Paper is principally concerned with information which would, under the Government's proposals, be protected by the criminal law. It does not, therefore, address such matters as the question of public access to official information not covered by the Government's proposals. That is a separate issue which does not arise directly out of the reform of section 2".

Lord Mishcon

My Lords, the noble Earl is very gracious. However, I read that paragraph and my reference was supposed to be one of sorrow that the White Paper was not dealing with the information which the public is entitled to have.

Earl Ferrers

My Lords, I am very grateful to the noble Lord for explaining that. The noble Lord, Lord Mishcon's complaint related merely to the fact that that was not included; I thought that the complaint related to the fact that there was no reference to it, and that was why I drew the noble Lord's attention to it. But, as the White Paper says, it is a different matter.

The noble Lord, Lord Harris, was kind enough to give a slightly more guarded welcome than the noble Lord, Lord Mishcon. He referred to it no longer being a criminal offence to relay ministerial correspondence and so forth. He asked me what it meant when it referred to "general matters". I do not think it would be appropriate to go into the detail of what this refers to. Still less would it be appropriate to go into a retrospective case. The whole point of this is that if there is to be a criminal prosecution, it will be for the courts to decide whether an offence has been committed.

I was glad too to see that he was glad that ministerial certificates were not going to be included. I realise that in a White Paper such as this concerning an issue on which there is a great breadth of controversy and where opinions are genuinely held covering a wide spectrum, not all views can be accommodated. I realise that the noble Lord, Lord Harris of Greenwich, was concerned about Clause 7 of Mr. Shepherd's Bill. We shall have an opportunity to debate this in due course.

I shall refresh noble Lords as regards the procedures that we have adopted. Having considered what we think should be done and having taken into account views which have already been expressed, we produced a White Paper giving the Government's considered views. That White Paper is then to be the subject of discussion in this House, in another place and in the public arena in general. It is only after that that a Bill with firm proposals will be brought forward.

Viscount Whitelaw

My Lords, as the unfortunate Home Secretary who had the responsibility of introducing the previous Bill in 1979, I think it would be reasonable for me to make a short plea to my noble friend, and indeed to the House, on this occasion. I am encouraged to do so by the reaction of the noble Lord, Lord Mishcon. I am certain that this subject has to be tackled by Parliament as a whole. We must have a new secrets Act—that is essential. We can only have it if there is a wide measure of consent throughout both Houses of Parliament with the Bill that is produced.

In 1979 I was told that the one thing which prevented that Bill from being acceptable to your Lordships' House—I was not in your Lordships' House of course at that stage—was the ministerial certificate. Consequently, I was very pleased to hear that my colleagues had decided on this occasion to remove the ministerial certificate. I am surprised because I suspect—the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Harris of Greenwich, will remember this too—that the ministerial certificate played some part in proposals made by the previous Labour Government before 1979, as it did in the proposals of the Government when I was Home Secretary. Perhaps we were all wrong on that occasion. But at any rate, having now moved this way, I hope very much that such a consensus will be able to develop in Parliament.

I hope that we shall not move from one objection in this very difficult field—the ministerial certificate, which is now removed—to another objection on some other matter. There are endless objections which can always be raised. But I believe that in the end Parliament must make a job of it on this occasion.

Earl Ferrers

My Lords, I am particularly grateful to my noble friend Lord Whitelaw for having made that intervention, not only because of his personal experience of having introduced the previous Bill and of the problems which that ran into, but also for the fact that he said that there must be a consensus on this issue. Inevitably not everyone will he satisfied. If we are to remove the absurd position which exists at the moment, we must move into a position which, broadly speaking, has the common accord of Parliament, both this House and another place. If we do not do that, the present position will remain. That would be a great pity. I wish to reinforce the view of my noble friend and say that I hope that we shall be able to get the future Bill through with a reasonable degree of accord.

Baroness Stedman

My Lords, from these Benches we too wish to add to the unanimity which appears to be present around the House this afternoon. We give the White Paper a cautious welcome. We are delighted to know that ministerial certificates are being abandoned. We have always doubted them. We have always taken the view that a judicial committee of the Privy Council should make these decisions rather than Ministers. But we are delighted that the White Paper appears to have taken on board a lot of the points that were raised in the Shepherd Bill and is certainly an improvement on the 1979 Bill. We shall of course study the White Paper. We hope, like other noble Lords, that it will be possible in our present rather heavy legislative programme to find time to have a debate in this House and to make our views known. But for the time being, without having read the White Paper completely, we offer it a cautious welcome.

4.15 p.m.

Lord Bethell

My Lords, I wish to join with others who have congratulated the Government both on confounding their many critics in this area and also on showing comprehensively that one should not always believe what one read in the press. The fact that the Government are proposing not to introduce a ministerial fiat over official secrets will have a widespread welcome. It is excellent that under the proposed legislation the courts will decide what constitutes damage to the national interest.

I hope that the fact that this matter will be left to the courts may to some extent take care of some of the other aspects of Mr. Shepherd's Bill, in particular the defence of prior publication and the national interest defence. It will of course be open to a defendant in such a case to argue before a judge and jury that damage has not been done to the overriding national interest because of a certain prior publication, whether in this country or abroad. Twelve good men and women true will have to decide whether this defence makes sense.

I have only one note of caution that I wish to strike, and that is on the vexed question of the lifetime duty of confidentiality imposed on certain individuals, especially employees and former employees of the security and intelligence services. This matter will need to be looked at very carefully. It is extremely delicate. But I can see that the proposals in the White Paper could emerge as repressive. One thinks not of this Government or of past governments, but perhaps of some government in the future where the avenues open to employees of this type might not be so welcoming and so available as they are now and have been.

An oppressive government in the future could perhaps use this measure to launch some unauthorised illegal Act through the security services and the intelligence services. There would be no way for a patriotic officer to react other than by breaking the law of the land as it was proposed. However, this complicated matter will have to be looked at very carefully. I am grateful to my noble friend for assuring us that there will be a chance to debate this measure in your Lordships' House. I wish to add my voice to others who have in general terms welcomed what my noble friend has just said.

Lord Ardwick

My Lords, it is exactly 50 years since I began protesting against the Official Secrets Act. I have gone on protesting throughout the years. It has been a kind of hobby, but I hope that at last that hobby is to be taken away from me. I was much relieved to hear the Statement this afternoon.

Lord Elwyn-Jones

My Lords, may we assume that government actions in this field from now on will be carried out on the basis of the principles set out in the Statement and in the White Paper and in accordance with the spirit of those two documents?

Lord Hooson

My Lords, will the Minister consider again the defence of public interest?

Lord Stoddart of Swindon

My Lords, may we have a few replies from the Minister?

Earl Ferrers

My Lords, of course I shall be delighted to help the House. I thought that it would be more convenient if those who wished to ask questions put their questions and then I would try to answer them one after the other. That would prevent me from jumping up about six times. But if the noble Lord would prefer me to jump up six times, I shall oblige.

Lord Stoddart of Swindon

My Lords, I am worried that the noble Earl will have forgotten the questions by that time.

Earl Ferrers

My Lords, I have been trying to write the questions down. I am grateful to the noble Lord for his sympathy because it is difficult to write, to listen and to think at the same time. But I am doing my best.

Lord Hooson

My Lords, I wanted to ask whether the Minister would consider persuading the Government to look again at the defence of public interest. As he is aware, once a jury has retired in this country, no judge can control it. It is widely believed by those of us who have conducted official secrets cases that juries consider the public interest but put their own interpretation on it. Would not it be safer for the Government to define what the public interest would be within that context? Will the Government consider that matter before the presentation of a Bill?

Lord Morris

My Lords, perhaps I may ask my noble friend, when he considers the wording of the debate which we shall have on the subject, to ensure that our consideration is confined to the subject of official secrets and not broadened to the totally different issue of freedom of information. That would be an aid to our debate. It often happens that questions as regards official secrets are broadened so widely as to obfuscate the issue in its entirety.

Lord Hatch of Lusby

My Lords, the noble Earl has suggested that we should not be retrospective. That is very convenient for the Government. But surely history governs the present and the future. The reason for the publication of the White Paper is the failure in the past of Section 2 of the Official Secrets Act.

The Minister also said that there was no intention to avoid embarrassing the Government. I should like to ask the Minister two questions. First, under the new proposals relating to the issue of defence in the White Paper, would Sarah Tisdall or Clive Ponting have been prosecuted? Will the Minister say that the cover-up which the Government and successive Ministers of the Government undertook over the sinking of the "Belgrano", with which both those people were connected and in connection with which the Government used the Official Secrets Act to protect themselves, could not happen again? Would the economy with the truth which went on for two years happen again under the protection of the new provisions within the White Paper as distinct from the present Official Secrets Act?

Secondly, the noble Earl informed the House that one of the exceptions to be included would be ministerial information in general. Would that have avoided the whole scandal of the leaking of the letter from legal officers of the Crown involving Downing Street and the Department of Trade and Industry? Is it the intention of the Government to make sure in future that that will not be an offence, that the leaking of such letters cannot be an offence, and that there are no grounds for prosecution if such an action is repeated? Is that not an attempt to avoid embarrassing the Government in the way in which they have been embarrassed over the past four years?

Lord Hutchinson of Lullington

My Lords, may I ask—

Earl Ferrers

My Lords, perhaps I may take up the kind offer of the noble Lord, Lord Stoddart of Swindon, and answer some of the questions which have been asked. Otherwise, not only shall I forget what has been asked but I fancy that the questioners may forget as well.

The noble Baroness, Lady Stedman, gave a welcome to the White Paper on behalf of her party for which I am grateful. She said that it was a cautious welcome. However, I hope that as time goes on she will not be quite so cautious. There has been a real effort to obtain a reasonable result. I am also grateful to her for her welcome of my assurance that ministerial certificates are not going to be reintroduced.

My noble friend Lord Bethell also indicated his support. I am especially grateful for that. I know that he has been concerned about the matter and has introduced debates and a Bill on the subject. It is encouraging that he is in favour of what the Government have done. He mentioned the matters of prior publication, national interest and lifelong duty. I do not believe that it would be appropriate to discuss those matters very much at the moment. This is only a Statement which indicates that a White Paper has been published. It would be better for noble Lords to have time to digest the White Paper and bring the matters forward properly when we have a debate on it.

I am also grateful to the noble Lord, Lord Ardwick, for giving a welcome to the Bill. He said that he had been lobbying like mad over the issue for 50 years and that it had become a hobby. I am delighted that we have been able to satisfy the noble Lord. However, I am sorry that we have taken away his hobby. Whether he will be obliged to take up gardening instead, I do not know. However, I hope that it will not detract from this House.

The noble and learned Lord, Lord Elwyn-Jones, asked whether the Government would act within the spirit of the White Paper. I certainly hope that we shall; otherwise, there is not much point in producing a White Paper which indicates our intentions. However, we are still prepared to listen before producing a Bill.

The noble Lord, Lord Hooson, mentioned the defence of public interest. Those who have supported a public interest defence must recognise that the Government's proposal would entirely change the context of the argument. We are now proposing that the harm to the public interest caused by disclosure should be defined and should, when it is not self-evident, be proved to the satisfaction of a court. A general catch-all defence would detract from the clarity which we hope can be achieved in the new law.

Perhaps I may now refer to the questions asked by the noble Lord, Lord Hatch. I believe that he has misinterpreted my use of the word "retrospective". I said that I did not wish to get involved in discussing the point made by the noble Lord, Lord Harris, about Sarah Tisdall and the arguments which the noble Lord, Lord Hatch, has produced about that lady and the "Belgrano". I do not believe that it is particularly helpful in discussing a Statement to attempt to go back and decide what might have been the case had such and such a position existed and what the position would be if the law which is going to be changed and which has not yet been changed or decided on had been in operation. I do not believe that that is constructive.

The noble Lord, Lord Hatch, frowns. However, I am certain that he understands perfectly well that I am saying that I do not propose to indicate what the course of events would have been had a different set of laws applied in those circumstances. My noble friend Lord Morris asked the Government not to stray onto the subject of freedom of information. As I indicated to the noble Lord, Lord Mishcon, that is indeed a different matter.