§ 3.32 p.m.
The Minister of State, Home Office (Earl Ferrers)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Earl Ferrers.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]
§ Clause 1 [Security and intelligence]:
§ Lord Jenkins of Hillhead moved Amendment No.1:
§ Page 1, line 5, at beginning insert ("Subject to the provisions of section (public interest defence) below,")
§ The noble Lord said: This amendment, which stands in my name and those of three other noble Lords, leads via nine other paving amendments—Amendments Nos. 3, 11, 15, 20, 27,28, 30, 32 and 36—to the substantive new clause which provides for the public interest defence. It is therefore a major amendment and one of the three that I and others suggested on Second Reading were necessary if the Bill were to live up to the reiterated claim of the Home Secretary that it should be a liberalising measure. Of the three amendments, it is perhaps the one of greatest single importance.
§ An analogous series of amendments was debated in the House of Commons for seven hours two months ago. That debate produced only five speeches, out of a total of 24, that were in favour of the Government—two of those five speeches were made by the Home Secretary himself—and led to 907 18 Conservatives voting in the Opposition Lobby. That was a substantial vote, given the heroic standards of whipping that are currently applied in—if I may so describe it after a span of 39 years in the other place—that somewhat rubber stamping Chamber.
§ The current reputation of this Chamber is certainly not one of rubber stamping. There was widespread expectation in the Commons that this Chamber would have something to say about this aspect of the matter. However, these amendments are not exactly the same as those put forward in the Commons. They have been narrowed in three respects so as to meet objections put forward by Ministers and to make the amendments even more manifestly acceptable to any government who are not simply wedded to the superior wisdom of their own draft in any circumstances and are consequently determined to make a mockery of a deliberative Committee stage.
§ The three differences are, first, that, under our amendments, the defendant can deploy the public good defence only if he can show that misconduct existed. "Reasonable cause to believe it existed," in contrast with the Commons amendment, is no longer enough.
§ Secondly, for the purposes of such a defence, misconduct is restricted to crime, fraud, abuse of authority or neglect in the performance of official duty. The possibly vague phrase "or other misconduct" has been removed. That provision is to make it doubly clear that a defence is not being provided for an official who discloses because he profoundly disagrees with the propriety of a policy decision. Thirdly, it is here made explicit that it is not enough to show that some public interest has been served. If some harm has also occurred, the one has to be weighed against the other, and, for the defence to be effective, the benefit must be clearly greater than the harm.
§ The effect of the amendments is therefore restricted, but it is nonetheless vital. Without them, even the most beneficial disclosure of the most blatant wrongdoing would be without a statutory defence. Without the amendments, in cases where the Bill provides for absolute offences—anything in relation to the security services or telephone tapping—there would be no need even for the prosecution to show that there was any resultant harm to weigh in the balance against the disclosure of manifest misconduct. In other areas where the absolute offence does not apply, an offence would be committed if very limited harm was shown even though the public benefit were clearly much greater.
§ In my view, the circumstances in which such a defence would be necessary and valuable would be if—this was an example cited in the Commons—major corruption in an ordnance depot were exposed. As a result, there would no doubt be some temporary disruption to the work of the ordnance depot, but, in the medium or long term, there would be much greater benefit from the exposure of those highly undesirable practices. Secondly, it might be used in circumstances in which, say, an infectious 908 disease were being imported by a ship or aircraft, and this knowledge was being suppressed either in the interest of not causing panic or in the commercial interests of the airline or ship, and clearly the harm could be very great indeed. It may be argued—I believe that it was argued by the Home Secretary in the other Chamber—that in those circumstances a jury would probably never convict; in other words, the jury would assume that the law ought to be such as we are trying to make it today, even though the Government have refused to accept our proposals.
§ I do not know what view a jury would take in such circumstances. Sometimes juries can act unpredictably and can go one way or the other. However, I cannot believe that it is either rational or good law for the Government to argue that juries will go against the letter of the law, because the letter of the law as the Government insist on having it is so manifestly contrary to both good sense and natural justice.
§ It also appears to be the case that to proceed with the Bill without this "any public interest" defence is a retreat from one of the few desirable aspects of the Act of 1911, of which Section 2(1)(a)—in the interests of the state (where this is rather differentiated from the interests of the government of the day)—has constituted a basis for a number of successful public interest defences. The Home Secretary tries to argue that such a defence is not provided in the Act of 1911, but he does not seem to have been significantly successful in persuading anybody else of that point. I have considerable regard and respect for the right honourable gentleman the Home Secretary; but it appears to me that the great weakness of his position on this Bill is that at one and the same time he is committed to presenting himself as the father of a great liberalising measure and to assuring the mother of the Bill that it is one which would have produced different results in the Ponting and Spycatcher cases. The two horses are not very easy to ride together. I am not surprised that it sometimes makes him fretful and unconvincing.
§ There is nothing alien to the law about a public interest concept. Indeed it is explicitly present in the original Act of 1889—more explicitly than in the Act of 1911. On 3rd June of that year the Attorney-General of the day, with admirable succinctness—in about four lines—moved an amendment, the object of which he briefly said was to limit the application of the clause to cases where the publication is contrary to the interests of the state or any department of the Government, or otherwise contrary to the public interest. That same phrase is enshrined in the original Official Secrets Act of 1889.
§ That defence is also of course specifically provided for in the Obscene Publications Act of 1959, for which I had considerable responsibility. The Home Secretary became embroiled with both Mr. Heath and Sir Ian Gilmour in the other place by dismissing this Act as universally thought to be unsatisfactory. So indeed it is in some ways; but its unsatisfactory nature stems from the inevitable vagueness of the concept "likely to deprave or corrupt" and not from the public interest defence. Were the Act to be stripped of that defence, it would put us back to having one of the most obscurantist literary 909 censorship laws in the world. As all governments of differing parties have had 30 years in which to improve that Act without any of them succeeding in doing so, it hardly lies in anyone's mouth to talk too dismissively about its imperfections.
§ As I understand it, a great part of the Government's case rests upon the belief that, particularly with the new and fortified procedure, all practical problems for any public servant can be dealt with by taking up the matter within the established hierarchy. That ignores the fact that a public interest defence may in some cases be necessary and desirable for a journalist or indeed for a private citizen. But beyond that, in my view it is not always sufficient within the public service to say that the established hierarchy can and should deal with a possible problem. There are many examples in our history and that of other roughly comparable countries where only the uncomfortable searchlight of public exposure has brought an abuse to an end by bringing it into the open.
§ There are great internal pressures, many of them stemming from the highly virtuous quality of loyalty—a desire not to expose—within the hierarchical structure. That can apply to officials of great probity. I have the highest possible view of the traditions of the British Civil Service. In some ways possibly I hold a higher view than is fashionable within some circles of government at the present time. Indeed, I ventured to initiate a debate in this Chamber in January which in part turned on my view of the exceptional quality of the diplomatic service. I have been lucky enough to have been brilliantly served by members of both that service and the home Civil Service; three of the latter have indeed since become Members of this Chamber. I never found their advice on policy to be other than well motivated, and I have rarely found it to be other than right.
§ However, the one area in which I believe that politicians know better than officials is that of understanding when it is desirable to let the light of an informed public opinion shine into dark places. In my view the one deficiency of our Civil Service training and ethos is that the service is too steeped in the British tradition of never telling the public anything that they do not have to be told, and leaving them to find out (as has been too often the case) by partial leaks rather than by proper disclosure. I therefore do not regard any wholly internal procedure as a satisfactory ultimate safeguard for the public interest.
§ I make two points in conclusion. First, it is not as though the British practice of attempted secrecy has worked well. We have not only had more than our fair share of spies; we have had more than our fair share of government and commercial leaks as well. Secondly, this is in some ways a brave Bill. It is trying to grasp a nettle which no other government have grasped for 78 years. The legislation may last as long. I believe that it will certainly last for some considerable time. It will have to be applied by many different administrations. It is pre-eminently the kind of measure which ought to have all-Party 910 support. If the Government could accept this, and one or two other amendments, they would be very near to having all-Party support. Were that to happen it would be good for the Bill, good for our legislative process, and for the balance of our political system. I beg to move.
§ 3.45 p.m.
Lord Home of the Hirsel
In past years, before this Bill was published, I have been sometimes attracted to the idea that in the context in which we are speaking there should be a reference to the public interest. However, if there is a principle in this matter it is surely that when Parliament legislates and applies the criminal law, that law should be made as precise in its terms as possible.
During the Second Reading debate I said that I could support the Bill for precisely this reason. For the first time a definition has been given by any Home Secretary of six areas in which the criminal law should continue to apply. That definition is a great improvement on anything that has gone before. Whatever may be said about the public interest, it is certainly not precise. There are a number of interpretations given to it. It would be extremely difficult for a jury to make up its mind on that matter. Therefore while I understand the anxieties of the noble Lord, Lord Jenkins of Hillhead, nevertheless I hope that the Committee will decide, if it comes to a Division, that the Bill as drafted should remain as it is. It is very important that the criminal law should be absolutely precise in its terms.
§ Lord Pym
All the controversy surrounding the Official Secrets Act over the last decades, and in particular over recent years, is surely evidence enough of the difficulty of legislating in this area. There is no ideal way of doing so, let alone a perfect one. There is a conflict of interest between the Government, the press and the media, and the public interest. In my view—and I share the views of the noble Lord, Lord Home,—the Bill succeeds in making as clear as possible what the Government believe is in the public interest for the protection of official information. It sets out specifically the categories of activities where disclosure of information would damage the public interest: the work of the security services; the capability of our armed forces; the nation's interests overseas; the fight against crime, and so forth. It is all set out in the early clauses.
I do not think that anyone seriously questions that disclosure in these areas could be very damaging and must therefore be prevented. When a case under this Bill is brought before a court the jury will have to decide whether or not the appropriate test of public interest has been met. The requirements seem to me to be as clear as they can be.
This new clause seeks to add a new and different concept to the Bill—and I think a dangerous one. It is one that does not exist at present. It is that some individual's personal view of a particular matter, and its handling, by definition a very different view from that of Ministers and other officials, is enough to justify disclosure. It would be an exaggeration to describe it as a licence to leak, but there is the flavour of that about it. And on what basis? On the basis 911 that the individual making the disclosure thought that there had been some misconduct by abuse of authority or neglect of duty or whatever, and that the damage to the national interest would be outweighed by the supposed benefit of the disclosure.
§ Lord Jenkins of Hillhead
I hesitate to interrupt the noble Lord, However, I specifically said that this amendment differs in three ways from the Commons amendment. It is not enough for the individual to think that there may have been misconduct. Misconduct has to be shown to have existed. It cannot be a matter of opinion. It has to be a matter of reality.
§ Lord Pym
It has to be established. Somebody might take the view that there was an act of misconduct; and he might not be right about that. That is my feeling about this clause.
These issues tend to be highly prone to subjective opinions and judgments. A person might think that disclosure would be in the public interest, that some abuses of authority or neglect of duty had occurred, and that person might be entirely honest and genuine, yet misguided When someone worries about a matter such as this on his own, perhaps for days on end, his judgment almost always turns out to be faulty.
I do not think it can be right for this Bill to contain a clause that enables an individual acting on his own opinion alone to think that he might be justified in making a disclosure that could inflict damage. That damage will have been done already by the act of disclosure. It may be a slight measure of damage or a very serious one. Either way, it cannot be undone. Even if improper disclosure brought some public benefit—and it is not easy in these circumstances to imagine what it might be—that would be as of nothing compared with the damage, or potential damage, that disclosure could inflict, and it is damage that we want to prevent.
I find this new clause unacceptable. Some people have argued that such a clause would bring a balance into the Bill— balance to make disclosure easier. In my view it would produce an imbalance—it would make our national security harder to achieve. In this Bill what we are dealing with, and what many of us are most concerned about, is nothing less than one aspect of the nation's security. Some people who have never had responsibility in this field sometimes fail to realise what an onerous responsibility it is. I have never been Home Secretary. I know that the noble Lord, Lord Jenkins of Hillhead, has held that office twice. This new clause is certainly in keeping with the liberal measures that he introduced then, with results that have been controversial to say the least—but that is by the way. I have not been Home Secretary but I have been Secretary of State in three departments where security was a major responsibility and a priority. I would be entirely content to shoulder those responsibilities with this Bill on the statute book, but not with this new clause.
Superficially it looks reasonable. It certainly sounded very reasonable as put by the noble Lord. 912 However, if one looks behind the new clause, it contains features that could be used to create great difficulties in the security field, mischievously, subversively or simply wrong-headedly. Some ill-intentioned people might see it almost as an invitation to make a disclosure. It adds nothing to the security of our country but makes our security more vulnerable. I think that we would be wise to keep our minds on this central objective: the security of the country. Without that we have nothing much and my conviction is that this new clause detracts from that security. I hope that the Committee will reject it.
§ 4 p.m.
§ Lord Hatch of Lusby
The noble Lord, Lord Pym, has illustrated the necessity for this amendment. As I said during the Second Reading debate, there is a difference between the interest of the public and the interest of the Government. The noble Lord, Lord Pym, appears to have been saying that the Government and Ministers are always right: that civil servants are always right in their judgment, whatever fraud, mistakes and misdemeanours they may perpetrate. It seems to me that what the noble Lord, Lord Pym, was saying reflected directly from the introduction to this amendment by the noble Lord, Lord Jenkins of Hillhead. If the judge in the Ponting case had been followed by the jury—the judge virtually said that the interests of the public and the interests of the Government are synonymous—many of the speeches that have been made on this Bill in both Houses would not have been made. We are entitled to know.
Members of the Government have referred to "perverse" juries. Which was the perverse jury? Was it the jury in the Ponting case? Was Clive Ponting right to consider that it was necessary in the public interest for him to reveal what had gone on in his department? The jury found that he was.
If the Bill were to stand without amendment Clive Ponting would now be in prison because the judge would have so directed. He did not direct; he summed up. Under the Bill he would have directed the jury. Right back in 1957 at the time of the Windscale fire and accident certain revelations were made. Was it right that the public should know or was it right that the government should cover up, lest there be fear of nuclear energy? Was it right for smears to be made against members of the Wilson government? Some noble Lords will remember the speech made by the noble Baroness, Lady Hart of South Lanark, who testified personally that she knew from her own experience in government that some of the accusations that were made and the smears made against members of the Wilson government had been carried out. Is it right that under the Bill civil servants should be forbidden to reveal that? Was it right that a civil servant should be charged for having revealed that the telephone lines of members of the CND were being tapped? Was it right that Cathy Massiter and Sarah Tisdall should make their revelations? Was that in the public interest? It certainly was not in the interests of the government of the day.
913 During the Second Reading debate I asked the noble Earl to answer a question, which he did not answer in his summing up. I referred him to the film "Scandal" and particularly to the programme that was shown on Channel 4 the week before the premier of "Scandal". It was stated in that programme—I am not saying whether it was correct or incorrect; I asked the noble Earl whether it was correct or incorrect—that, although at the inquiry before the noble and learned Lord, Lord Denning, the head of MI5 denied that Stephen Ward was employed by or was an agent of MI5, later it was admitted that Lord Denning had been told a lie. Under the Bill as drafted that lie would not have been able to be corrected. Almost certainly as a result of that lie Stephen Ward died.
Is the Committee saying that in all circumstances, whatever a civil servant, member of the intelligence service or member of the security services finds out in the course of his duty, he is to be prohibited from making that public? If that is so, what is the position of Miss Bowe? What is the position of those who leaked that letter during the Westland affair? What would it be under the Bill? We are suggesting that there is a public interest and that that issue of public interest has been recognised in many other countries without any danger to their security. The Government appear to be obsessed with secrecy. Although it has been shown in many other countries that the public interest defence can be included and that freedom of information Acts can be passed without any danger to security, in this country we retain that secrecy. Apparently we do not trust the public. What is more, apparently we do not trust the jury.
I say to the noble Lord, Lord Pym, that surely the question of public interest is not a matter that should rest either with the supremos in the Civil Service or with Ministers. The right place for the interests of the public to rest is with the jury. The jury showed in the Ponting trial a greater degree of concern for public interest than did either the judge or the Government. We, and those who support the amendment—and probably all those who are wedded to our concept of common law and the jury system—believe that the tribunal, the forum that should decide these matters, is not the Minister or the civil servant, but the 12 men and women who are selected to judge on behalf of the public.
§ Lord Boyd-Carpenter
The noble Lord, Lord Hatch, suggested that some of us on this side of the House thought that Ministers were always right. Let me assure him, as one who has served in one House of Parliament or another since the war, that I know very many examples to the contrary, though I shall spare the blushes of certain noble Lords by refusing to enumerate them. There is one thing about Ministers which is unique and separates them while they are Ministers from their fellow citizens. Ministers, particularly senior Ministers of the Crown, have a direct responsibility for the safety of the realm. They have a very special responsibility, as my noble friend Lord Pym put it so well a few moments ago. There is great danger in trying to wean away, to whittle away, that responsibility which properly falls on Ministers and Ministers only.
914 As I listened to the noble Lord, Lord Hatch, I thought he seemed to be hardly in the real world. It is utterly unrealistic to ignore the fact that we live in an age where widespread, deliberate, well-financed espionage is being carried out by major countries, many of them aiming it at this country. It is utterly unrealistic to ignore that. There are many powerful, well-financed organisations seeking to discover secrets—particularly those relevant to the finance, defence and security of this country—in order to damage this country.
It is not a question of being alarmist and speaking of "spies under the bed". One has only to see what is happening in the world. There is an occasional case—the small example which breaks the surface —of a spy who is arrested or a diplomat who is told to go home because he has been behaving like a spy. That is the reality of the modern world and one cannot get away from it—
§ Lord Hatch of Lusby
I am obliged. Will the noble Lord tell the Committee why the principles that he is now enunciating apply to this country but not to others which are also in the real world and which show more concern for public interest than is allowed for in the Bill? He will know of the countries to which I refer, some of which are in the Commonwealth. They are in the real world and are subject to the same pressures. Why can they be liberal but we must be secret?
§ Lord Boyd-Carpenter
I do not propose to enter into a discussion of the arrangements in other countries. We are now concerned with the proper arrangements which are to be made here. It is more than possible that some of the countries which he has in mind are being extremely unwise and are endangering their security.
There also exists the fact, which the noble Lord appears not to have in mind, that this country—as the central point of the European alliance and one of the major countries in the Western world—is one of the main targets of Russian espionage and attempts to discover our secrets. Some of the countries to which he has referred are not in that position, perhaps happily for them.
I beg the noble Lord to concentrate his mind not on what is done by other countries—wisely or unwisely, rightly or wrongly—but on the question with which we are now concerned: what is it right for this country to do? One then comes to the question of who should decide what is to be published in the public interest.
In general, and leaving aside security matters, I yield to no one in my admiration for the machinery of judge and jury. But, in assessing whether a particular matter which has been secret should be allowed to continue to be so, a jury and, with great respect, an ordinary judge are not in as good a position to form an informed opinion as are Ministers of the Crown who are in touch with the security services and able to read their secret reports. 915 As regards security issues, what is in the public interest is not a matter for judges of the High Court (I say that with the greatest respect) or members of juries because they do not have the background knowledge to form a realistic opinion. The only people in a position to do so are Ministers of the Crown, although they may have imperfections and limitations.
I should like to recall to the Committee a matter which I mentioned briefly in our debates on the Security Service Bill. One of the great successes of British security occurred during the time of the Attlee Government. Quite rightly and patriotically they decided to manufacture a British nuclear bomb. They succeeded in concealing that fact from everyone, including Parliament, which was absolutely right.
Let us apply the approach of the amendment to that situation. How do the noble Lord, Lord Hatch, and members of the Committee believe that a judge and jury would have addressed themselves to someone who sought to disclose the fact that a British nuclear bomb was being manufactured? It would be easy to say that it was a matter of the gravest importance—which it was—that it was a matter of enormous relevance to the future safety of this country and, therefore, it must be in the public interest that the public must be aware of it. With all respect, that would have been a nonsense. The determination of the Attlee Government, not only to manufacture the bomb but to keep quiet about it until it had been completed and ready for use if necessary, has greatly contributed to the strength of this country in the troubles of recent years. Indeed, it has contributed substantially to the peace of the world. I am glad to have the opportunity of paying tribute to Mr. Attlee—Earl Attlee, as he later became—for a fine display of good judgment and patriotism. But it is a good test—
§ Lord Boyd-Carpenter
I am sorry. Let us suppose that something of that kind were happening now. Who believes that a judge and jury are competent to form a view on the immensely important and difficult question of whether it would be in the public interest that such an issue should be disclosed? Now I shall certainly give way to the noble Lord.
§ Lord Hutchinson of Lullington
I am obliged. What the noble Lord has said about Mr. Attlee and the bomb has absolutely nothing to do with the amendment now before the Committee. The amendment covers the revelation of crime, fraud, abuse of authority and neglect of the performance of official duties. With the greatest respect, it has nothing whatever to do with a view about disclosing the possession of a bomb.
§ Lord Boyd-Carpenter
I suppose that the noble Lord is entitled to that belief, however fantastic. If one could find anything more relevant to a charge of abuse of authority or neglect of duty than the question of this country's manufacture of nuclear 916 weapons, his intervention would have some point. With great respect to the noble Lord, his intervention is absolute nonsense, although interesting and illuminating nonsense. It indicates the extraordinary, unreal world in which he and those who think alike apparently exist.
It was a matter for decision by a British government, a decision which undoubtedly would and could have been criticised by all kinds of people including, no doubt, the noble Lord. It would have been alleged that it was a neglect of duty and an abuse of authority. It is obvious that if the facts had been disclosed the history of this country and the free world would have been different and less good than it has been.
Therefore we return to the question of who is to decide whether it is in the public interest for a matter of importance which has been secret to be published. Is it to be decided by a judge and jury or is it to be decided by responsible Ministers of the Crown? I am quite clear that it should be the latter.
§ Lord Elwyn-Jones
In the submission of Members on this side of the Committee this Official Secrets Bill will achieve far greater public support and acceptability if the amendment which we are now discussing is carried. Perhaps it is as well that we should remind ourselves of the terms of the amendment before we get into waters with which it is not in any way related. The amendment makes it a defence for a person charged with an offence under this Bill to prove, not to suspect, in the case of a trial, to the satisfaction of the jury that the information, document or other article in question reveals the existence of crime, fraud, abuse of authority or neglect in the performance of official duty. There then follows the strict limitations of the misconduct contemplated. That is what needs to be proved. A person who wrongly suspects that kind of misconduct would not have the beginning of a defence.
In order to indicate a further safeguard in the language of Amendment No. 38 subsection (1)(b) provides:in the circumstances the disclosure was in the public interest having regard both to any benefit and to any damage that resulted or was likely to result from it".Therefore the court will have to and will be invited to address its mind expressly also to that issue.
The amendment does not apply itself to matters of policy. It cannot be invoked by someone who believes that the policy of the Government is misguided, for example, with reference to nuclear armament, to the point of being contrary to the public interest. That would not be open as a defence under the terms of the amendment.
Then, as I said, it would not be enough merely to prove that the misconduct alleged existed and was serious. The defendant would have to show further in his defence that in the circumstances benefit from revealing the information outweighed any possible harm. Therefore, that is a very circumscribed defence and our submission is that the public interest defence, which we think is essential in this Official Secrets Bill, is not a loophole but a safety net. The jury would remain open to a prosecution argument 917 that more harm than good was done by the exposure complained of or indeed that no good resulted at all.
Without the presence of a public interest defence in the Bill the jury would never be able to begin to weigh whether or not on balance a defendant's unauthorised disclosure benefited or harmed the public interest. The jury will not be invited to consider the public interest at all if this Bill becomes law as it stands.
As has been said, the defence of public interest is already well established in our law and, in particular, in the civil law of confidence. At common law a person who accepts information knowing it to be given in confidence is under an obligation to retain and respect its confidentiality. If necessary, the courts will enforce that obligation. However, the courts have refused to enforce such an obligation—and indeed they hold that the obligation does not exist—where the information relates to serious wrongdoing. That is the basis of the public interest defence, often called iniquity defence, under the law of confidence. That is well established and well known in our law.
In the Spycatcher case the noble and learned Lord, Lord Goff of Chieveley, described the defence clearly when he said:In a free society there is a continuing public interest that the working of government should be open to scrutiny and criticism".In the same case the noble and learned Lord, Lord Donaldson of Lymington, the Master of the Rolls, said:The press has a legitimate role in disclosing scandals in government. An open democratic society requires that that be so. The ability of the press freely to report allegations of scandal in government is one of the bulwarks of our democratic society".Equally it is to expose serious misconduct in the conduct of government. The public interest defence will enable serious misconduct to be exposed but without it, in my submission, important areas of public administration will be beyond the power of both Parliament and the press.
There is a further matter to which the attention of those who respect the authority of the European Convention on Human Rights should be drawn. If a public interest defence were provided in the Bill, the critieria of the European Court of Human Rights will be more likely to be satisfied than if it is not included.
Article 10 of the convention gives rise to the basic view that freedom of expression is the very heart and soul of a free society. Article 10, which is, of course, binding upon this country, expressly provides that freedom of expression. Any restrictions imposed on that right of freedom of expression must be rigorously examined to ensure that they satisfy the conditions on which, according to Article 10, limitations on freedom of expression are permitted. Those conditions of that convention require that any limitation should be necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for 918 maintaining the authority and impartiality of the judiciary.
A limitation has been deemed only to be necessary. according to the European Court on Human Rights in Strasbourg in the Handyside case and the Sunday Times case, which incidentally are both binding on the United Kingdom, if it serves a legitimate aim and seeks to meet a pressing social need and is proportional to that need.
In our submission, what we propose, by the introduction of a public interest defence, will enable us to survive what will or could otherwise be yet another defeat at the court in Strasbourg—and we have had too many of them. That is something which we should weigh in the balance. If the Bill makes no provision for a public interest defence, if the benefit to the public in the disclosure of information is found and thought to outweigh the benefit to be derived from the public by its suppression, then unless we provide some sort of protection of that sort, we may well find ourselves in very great difficulty when these matters come before the court. Therefore, in the circumstances this restrictive but clearly established defence in law should become part of a Bill which would otherwise be accepted with suspicion and doubt by the public in this country.
§ 4.30 p.m.
§ Lord Renton
The noble and learned Lord has, as always, put his case before us with persuasion and clarity but I confess that I am not convinced by his arguments. Indeed, I feel that they contain, as did the arguments of the noble Lord, Lord Jenkins, several fallacies of which the Committee may wish to take note.
First, I refer to the analogy between the public interest, and the matters with which we are concerned in this Bill, and the common law defence of public interest in matters of confidence. That is not a proper analogy to make in these circumstances. Surely there is a wide gap and a big difference in principle between confidence in private relations, professional relations and commercial relations, on the one hand, and, on the other, the confidence and secrecy which a civil servant owes to the nation, to his own colleagues, and to the government in matters which are covered by the first four clauses of this Bill. That is what we are concerned with.
In speaking about analogies, perhaps I may mention another analogy made by the noble Lord, Lord Jenkins of Hillhead, who spoke of the Obscene Publications Act 1959. I was particularly interested because I had the responsibility of replying for the then government from the Front Bench in another place when he was dealing with that Bill, as he may remember. The noble Lord invited the Committee to consider the defence of literary merit in regard to obscene publications and apply what he alleged was a principle that should be applied to official secrets as in this Bill. However, surely that is again an analogy very far removed from the circumstances we are responsible for considering.
Let us now take the position of the jury in these matters. The noble and learned Lord was quite right to mention that the defendant will have to prove 919 several matters to the jury if this new clause is added to the Bill. Let us consider what those matters will be. First, he would have to prove that there was serious misconduct involving crime or fraud. That might not be too difficult because, after all, juries are accustomed to dealing with such matters. However, "abuse of authority" is a fairly vague expression. It relates to the abuse of authority by those inside the public service. By the same token, "neglect in the performance of official duty" is also vague. I will make a general comment covering all these matters in a moment but I ask the Committee to bear in mind that those are matters on which the jury would have to decide.
We then find that the jury would have to decide whether the disclosure was in the public interest. Finally, in the case of a Crown servant, a government contractor, and so on, the jury would then have to decide whether the defendant had taken,all reasonable steps to comply with any established procedures for drawing the misconduct to the attention of the appropriate authorities without effect.I have great respect for the jury system and considerable experience of it in one way or another, as have a number of Members of the Committee, but I say with respect to noble Lords opposite that these are not matters which should safely be left to juries. They do not have the background knowledge. They do not live in the world of national security, international relations, and so on, with which these matters are concerned. Therefore, to my mind, it is no strong argument that these are matters to be left for juries to decide upon.
We must bear in mind that before a civil servant is ever brought before a jury he will have taken responsibility upon himself; he will have become judge of these matters on his own behalf before the case is ever revealed or brought to court. It is a strange situation because if we look through the various cases of breach of security that there have been, the last action that any of the civil servants concerned has ever taken, or has thought of taking, was to go to his own superior authority to ascertain whether he was right to pursue these matters and then to reveal them. Surely it is a fallacy that these important matters of defence, and so on, can safely be left to that situation.
However, the noble Lord, Lord Jenkins, and the noble and learned Lord rightly point out that the defence of public interest is better than previous ones because of the third point which is contained in subsection (2) in Amendment No. 38. At Second Reading we listened to a very short but interesting and powerful speech by the noble Lord, Lord Hunt of Tanworth, speaking with all his experience in the Civil Service. I quote from that speech. He said that,there are procedures for this. The individual concerned has the right of access first to the head of his department"—presumably that means not the Minister but the Civil Service head—and then on appeal to the head of the Civil Service. In the case of security and intelligence services he has also the right of access to the staff counsellor."—[Official Report, 9/3/89; col. 1617.]I should have thought that rather than inflict upon juries the responsibility of taking decisions as to 920 whether reasonable steps have been taken to follow those procedures it is best for those procedures to be allowed to take their own course.
In conclusion, I should like to take up one further point. One could make a much longer speech in seeking to answer the various arguments put forward, but I shall deal with only one more. At the end of his speech the noble Lord, Lord Jenkins of Hillhead, said that there were two matters with which he wished to conclude. One of them I summarise in this way. I hope the noble Lord does not mind if I paraphrase his words and that he will correct me if I am wrong. He said, in effect, that there have been so many leaks, so many breaches of security that it has been impossible to stop, and so many revelations made that we ought to give up the struggle and allow something like a free-for-all so long as one can prove that there was misconduct, a public interest, and that reasonable steps had been taken to refer the matter to higher authority. I have always respected the noble Lord's wisdom in the past but I should have thought that that is the counsel of despair and defeat. It is an argument that we should not follow.
§ Lord Jay
I should like to ask the Minister two questions about where this Bill stands. It seems to me that we are not making an important distinction as clear as we might do. I agree with the noble Lord, Lord Boyd-Carpenter, myself having been both a Minister and a civil servant, that Ministers are not always right; nor are civil servants always right. I also agree with the noble Lord, Lord Pym, that with regard to the question of public policy a civil servant has no right to take the view that he knows better than the elected government. They may both be wrong. However, on a question of policy we must work on the assumption that the elected government and the responsible Minister are more likely to be right than a judge or jury or a civil servant or a newspaper.
Let us suppose that something quite different from an issue of policy is at stake. Such things have happened and may well happen nowadays. A Treasury civil servant may learn that a Treasury Minister is in process of selling Budget secrets for private gain to some outside person, and may gain no satisfaction, with no action being taken within the hierarchy. That situation is unlikely but not inconceivable.
Alternatively, a civil servant in the Ministry of Defence may learn that a senior official or defence minister is selling secrets to a representative of the Soviet intelligence service about which we have heard so much from the noble Lord, Lord Boyd-Carpenter. The question I should like to ask the Minister is this: What would be the position of that civil servant under the law, unamended, as it now stands? Would he have any remedy or would he be liable to be prosecuted? I suppose that he would not be prosecuted if he went to the Serious Fraud Office; but if he went outside the official machine, would he have any defence? Secondly, if that is the case, what would the Minister advise a civil servant to do if he found himself in those circumstances?
§ Lord Carver
I was very nearly drawn in favour of this amendment by the extremely persuasive arguments of the noble Lord, Lord Jenkins of Hillhead and the noble and learned Lord, Lord Elwyn-Jones. Nevertheless, I have considerable reservations which do not concern the problem of the Crown servant or the member of the armed forces. I entirely agree with the noble Lord, Lord Hunt, that there are other people to whom a Crown servant can go in order to relieve him of a burden on his conscience if his own Minister or Secretary of State or Permanent Under-Secretary is not forthcoming. My concern here is that this amendment could be exploited by unscrupulous people who are not Crown servants and who acquire information by some means or another and then attempt to exploit the combination of either abuse of authority or neglect of the performance of official duty and the argument that the disclosure was in the public interest, having regard both to any benefit and to any damage that resulted. This could open the door to a great deal of undesirable disclosures.
Rather reluctantly I feel myself bound not to support this amendment. I believe that the answer lies in a more careful look at the definition of "damaging disclosures". To keep this point in proportion we must first recall that this Bill enormously reduces the area over which the previous Official Secrets Act was employed. It reduces it to four areas. In two of those important areas, defence and international relations, the prosecution must prove that the disclosure was damaging. It is that definition of "damaging" which Amendments Nos. 13 and 14 address. We are not talking about many of the kinds of disclosures which noble Lords have spoken about; we are only talking about disclosures under this Act. My natural feelings are towards openness of information and the view that anything which is in the public interest should be disclosed; but I believe that this amendment as it stands would open the door to a number of very undesirable disclosures.
§ Lord Beloff
I should like to make a point that has not been fully ventilated. There is a great deal in what the noble Lord, Lord Jenkins, had to say about the desirability in the last resort of not preventing some great damage to the nation as a whole by concealing a misdeed on the part of a public servant. If the matter had stood there, I should have thought that one could go along with this amendment. However, having heard the noble Lord, Lord Hatch of Lusby, I am now convinced that we cannot accept the amendment because it is suggested that it is to be taken much further. I say that for this reason. If one envisages the situation in which great damage has been averted by some act which is itself unlawful, no sensible government would prosecute and no imaginable court would convict. In that sense, public interest is always implicit in the laws that we make. However, if we write it into the law and say that there is something very special about public interest, which is not the interest as defined by Ministers or the Civil Service superiors of the individual in question, but is something about which he should make up his own mind, we are doing the opposite of what I am sure the noble Lord, Lord Jenkins, 922 would wish to do. Civil servants would be encouraged to break the law in regard to official secrets, because they would say, "Parliament has said that we have the right to have views of our own as to what is public interest and what is the national interest".
We can take with this point the comment made by the noble Lord, Lord Boyd-Carpenter. There are organisations in this country which will be only too anxious to encourage individuals to explore their consciences to see whether they cannot find some use of the information that they have in order to pursue the causes which these organisations have at heart.
In my view the Civil Service is by no means impeccable; it is an institution which I have criticised in your Lordships' House and which I will criticise in the future. However, one thing is essential if we are to have a Civil Service and that is that there must be an ethos which takes public interest in the way in which it has always been taken; the interest as defined by the elected Ministers to whom they are responsible. There is bound to be the odd person who is a self-important nincompoop like Mr. Ponting; there is bound to be the muddle-headed young idealist female like Miss Tisdall. They will always be there. What we do not want is to encourage their number to increase by making it seem respectable. Therefore I appeal to Members of the Committee not to accept this amendment.
§ Lord Mishcon
Perhaps I may say to the Committee without pretension that this amendment is not only capable of academic argument. It also has essential practicalities. The essential practicality has not been dealt with so far in the worthy speeches made against the amendment. By the description of the arguments as "worthy", I do not mean that they are acceptable but that they are at least logical and realistic. The amendment has as a precondition that there is something rotten in the state of Denmark. We behave at our peril like Hamlet, wondering what to do about it and deciding, in scene after scene and act after act, to do nothing at all.
A crime has been committed. A fraud has been perpetrated. A grave impropriety has been done. Let us forget for a moment the arguments about the last two words in the amendment. It may well be that at Report stage some other words can be introduced. Those are the matters about which we are talking. They are there not in the mind of the individual because, as my noble and learned friend Lord Elwyn-Jones pointed out, unless these matters are proved to exist the defence will collapse. Counsel for the defendant, however eloquent he may be, cannot argue—because he will be stopped by the judge—that his client thought that this was so, that he imagined that there was reasonable cause and that he had good grounds for thinking that he had reasonable cause. Those who have argued about this matter must take it for granted that the judge in charge of the trial would stop counsel in his tracks. He would say that while that might be a worthy argument if the defendant were convicted, it would be an argument in mitigation and would have nothing to 923 do with the offence, whether it had been committed or not. We are trying to deal with things that have gone badly wrong.
It is difficult to do anything in Parliament when there is a heavy majority which will decide even without listening to the debate to vote against an amendment. I say in all humility that when this matter came before another place the criticism was made that one could have someone who suspects. The noble Lord, Lord Beloff, described various people, possibly claiming the protection of privilege while doing so, who had made complaints in the past. He saw fit to describe them in certain ways. He may be right or he may be wrong. The same kind of thing was said in another place. It was said that some idiot might suspect something but that that had gone and had been altered.
The next argument was that any form of misconduct was included in the amendment in another place. That was thought by the Government to be too vague. Those words were left out. We altered it too to make it absolutely clear that the civil servant would have to go through every conceivable step and then find at the end of the day that he had got nowhere and that there was still something rotten in the state of Denmark. It may be said that if someone goes to the top of the Civil Service and discovers a crime, fraud or impropriety, it will be dealt with and there will be nothing left for anyone to do by way of disclosure. In The Times of 25th January this year there was a letter signed by four former permanent secretaries. They were the noble Lord, Lord Croham, Sir Frank Cooper, Sir Patrick Nairne and Sir Douglas Wass. They did not advocate—and I do not pretend that they did— public interest defence, but this is what they said:It does not seem to be wholly unimaginable that a government might perpetrate some serious impropriety in circumstances in which the head of the Civil Service might be unable to respond effectively to representations about it from within the service".It is not I, never having been a civil servant, saying it. It is not just my noble friend Lord Jay, a distinguished civil servant and a distinguished Minister in his time, saying it. Four former permanent secretaries have gone on record to say that they can imagine it.
I say to the noble and gallant Lord, Lord Carver, who was hovering on the brink of accepting the amendment and not accepting it, that we are not talking about a civil servant who feels there has been an error of policy. That is not within the spirit of the amendment. We are trying to be determinate unlike Hamlet when something really goes wrong in government. When members of the Government Front Bench say with their hands on their heart and with perfect honesty and integrity that this could not happen in their government I will accept it from them and hope that by way of compliment they will say that it could never have happened with a government in the past representing the Labour Party.
As was said by the noble Lord, Lord Jenkins, we are not legislating only for the present Government. We are not legislating for previous governments. We are legislating for years ahead. This amendment tries 924 to assure the public that if something really dreadful is happening in government circles, we are not saying "Do not dare to utter a word about this. Do not dare to let it get into the press. And if you, the press, dare to repeat it, you will have an offence alleged against you; we have seen to it that there will be no defence in the public interest and no defence about opening the gates of iniquity". In that way iniquity can be allowed to escape but escape only until the disclosure is made. It is in that spirit that we have confidence in the amendment.
§ 5 p.m.
§ Lord Trafford
As always, I am nearly persuaded by the able advocacy of the noble Lord, Lord Mishcon. Once again I began to feel that perhaps he had a strong point. I have sympathy with what was said by the noble Lord, Lord Jenkins of Hillhead, about secrecy in the Civil Service. In fact, I had sympathy with a good deal of what he had to say. However, two thoughts came to mind. During the Second Reading debate one of the comments that appealed to all sides of the Chamber concerned the balance of the Bill. It was first raised by my noble friend Lord Thorneycroft. The problem with the amendment is that it tilts the balance of the Bill so far that to a large extent great parts of the legislation would become practically meaningless. The width of the so-called public interest defence would become so great that almost any advocate—one would not need the noble Lord, Lord Mishcon, or one of the other able advocates on the Benches opposite addressing themselves to this matter—could put forward a defence to anything a civil servant might wish to do.
My second point is that very often when civil servants or people in the public sector have leaked and brought matters into the public domain they have not gone through any of these procedures. They are not likely to do so in the future. I accept that fact. For the most part, people—I think it was those with a tender conscience that my noble friend Lord Beloff referred to—are much more likely to leak information directly than they are to go through this procedure. I accept all those factors.
However, there are two other major factors to be considered. First, although this is in no sense a freedom of information Bill, it has swept aside large and vast areas which were subject to the previous Official Secrets Act. Secondly, having defined pretty narrowly the essential necessity of the secrecy of the security services, the intelligence services, the armed forces and international relations—the points my noble friend Lord Pym made—I think that it has delineated the core of the security of the realm. I would go a long way with the noble and gallant Lord, Lord Carver, when he made the comment that there are issues in future amendments which will deal with this matter.
The amendment drives a coach and horses through the Bill. It is far too wide. Indeed, anyone can get away with nearly anything. Further, I am afraid to say that it would probably of itself endanger the security of the realm.
§ Lord Hemingford
I put my name to this amendment because I feel that in the debate in 925 general about the Official Secrets Bill too much concentration has been put upon the role of civil servants. Indeed, I find that much of today's discussion has gone the same way. I suppose that it is understandable in the sense that the Government have demonstrated a certain amount of obsession with leaks from within the Civil Service, in the background, no doubt, of the Spycatcher and Ponting trials. In my view such cases are hard cases which may make bad law.
I must say that I felt we had met in this amendment the concerns of the Home Secretary who said in the debate in another place that what he was really concerned about was public servants who might have bad motives and who would be tempted or encouraged to inflict quite serious damage on the interests of the citizen because they felt Parliament had given them a way to get away with it. Other noble Lords have tried to impress upon the Committee how narrow the requirements of the amendment are. I do not propose to repeat those arguments. However, I must say to the noble and gallant Lord, Lord Carver, that I believe someone who was not a civil servant would not see an easy way through this language, given that one would have to persuade a jury that one had acted responsibly under such language.
In my view the amendment makes it absolutely clear that a public servant would have to go through the machinery which was so graphically described to us on Second Reading by the noble Lord, Lord Hunt of Tanworth. However, when he reached the end of his remarks he said that in the last resort if a civil servant still felt in all conscience that he should reveal something it would be difficult to imagine that a jury would convict. I do not believe that that is a proper way to leave the issue. It seems to me that we ought to be trying to write a law which will be specific on such a point and which would not leave it for a jury to guess what we meant. I am sure that we must have some kind of language of this nature to protect that ultimate situation.
In a way it is unfortunate that the attempt to get a public interest defence has been described in various ways as a coach and horses and an overarching defence, and so on. It is not so. It is extremely narrow, and it would be very difficult to meet.
During Second Reading and on other occasions during the debate we have heard much from many distinguished former civil servants about the importance of relations between Ministers and civil servants. Indeed, there has been some suggestion that a public interest defence would interfere with that relationship. The amendment certainly would not do so. By mentioning the internal machinery it could be said that it would actually strengthen the situation.
As I say, other objections which have been raised have been rather more vague. However, I do not see this as a case of overarching; I see it as a piece of sensible underpinning, or buttressing, which would come into play only in extreme circumstances. The suggestion has also been made that it would be difficult to define the public interest. I have more faith in juries than perhaps some other people. I do 926 not believe that they would find it all that difficult. In any event I believe that the words already appear in official secrets legislation. Indeed in the Official Secrets Act 1920 the Secretary of State is required to consider the public interest. Under Section 4, where it appears to him that such a course is:expedient in the public interest",he may by warrant require people who run telegraphic or cable systems to hand over copies of originals and transcripts. If the Secretary of State can assess the public interest, why should not a jury also be able to do so?
It has been said that we would be creating a new defence with this "public interest defence". Indeed, other Members of the Committee have mentioned the background to the matter. The issue may be arguable, but even if it were true I do not see why it should be decisive. After all, we are considering a Bill which breaks a good deal of new ground. I entirely accept what other Members of the Committee have said about the amount of scope which it removes from the official secrets legislation. However, it is important, in view of some of the remarks made earlier, to remember that Section I of the existing Official Secrets Act, which deals with espionage, remains. However, we are not dealing here with the question of espionage; we are dealing with other less severe matters.
Even if there had not been a defence of public interest in the past—in fact I think that there has been—I do not see why it would be wrong to create one. As other Members of the Committee have mentioned, Section 2 did contain reference to the interests of the state and those crucial words are now being removed from the Bill. I believe that we must replace them with something or a fundamental point will have been lost.
There has been a certain amount of criticism by the people who proposed the legislation on the grounds that we have done nothing but look for deficiencies and that we have not been sufficiently willing to pay tribute to what is being liberalised. Surely our job here is precisely to look for such deficiencies and, if they exist, to put them right. It is precisely because this Bill is more tightly drawn than the old Section 2 that it is more likely to be used effectively. That makes the need for adequate defences more, and not less, important. The absence of a public interest defence is seen by many people outside the Civil Service to be a deficiency so serious as to outweigh all the rest.
I think it is worth enumerating some of those people, apart from the Members of the other place who have already been mentioned. I have recorded the following from the world of publishing. The Periodical Publishers' Association, representing 80 per cent. of magazine publishing interests; the Newspaper Society, representing the bulk of local newspaper publishers; the publishers and editors of 15 of the country's leading book publishing firms; the Association of British Editors whose members include senior editorial people from the bulk of serious national newspapers, the BBC, independent television and radio, local newspapers and periodicals; the Guild of British Newspaper Editors 927 whose mainly local membership is fortunate in the expertise of its parliamentary and legal committee; and the Consumers' Association whose impartiality we can take for granted. All these have come out strongly in favour of a public interest defence. They believe its absence is a crippling defect.
Are they all to be dismissed as wrong simply because the Government have taken against the idea of allowing a citizen to defend him or herself on the grounds that what was disclosed may have harmed the security service but that non-disclosure would have inflicted greater harm on the nation, the state, the public, the democratic way of life, Parliament or however you choose to define the greater good? The best thing that was said in the debate in another place was the statement made by the honourable Member for Aldridge Brownhills, Mr. Shepherd, when he pointed out that the Government, which he otherwise supports, were proposing to send a man or woman to prison if he or she reveals a crime or fraud or iniquity, without their having to adduce any form of damage or harm. He added: That is an outrageous and monstrous proposition. It is a proposition that tyrants hide behind.
If we allow this Bill to leave the Chamber without this amendment or something like it, we shall have connived at that proposition. I cannot believe that we will do it. One of the Prime Minister's strengths, no doubt, is her utter conviction that her course is best. But in some ways it is also her greatest failing. In the face of all the opposition that has been expressed to this Bill as it stands, I believe it is our job to look at it again. In a letter to the Independentlast week the Minister of State at the Home Office, Mr. Patten, wrote:Even in the area of security or intelligence, any journalist who made an unauthorised disclosure of official information relating to the work of the security and intelligence services would only commit an offence if the prosecution could prove that particular disclosure damaged, or was likely to damage the work of the services, and that journalist knew it would.The Government have constructed the Bill to reflect their view which I understand, that any disclosure about the security and intelligence services is damaging. They therefore expressly rule out any defence on the grounds that the greater good required a disclosure. A jury will not be permitted to have laid before it an argument of that kind. That has got to be wrong. In my book it is against natural justice. It is also dangerous. The welfare of the security and intelligence services, important though it is, is not necessarily synonymous with the welfare of the citizenry at large. We must recognise that in the Bill. As Mr. John Birt, Deputy Director General of the BBC, has said in relation to telephone tapping:This Bill insists that no unauthorised disclosure whatsoever about a warranted interception can be justified. The prosecution needs only to prove the fact of the disclosure—that it has taken place—and not that it was harmful. But we cannot be certain that governments at all times will use their power to monitor private conversations—or will use the information collected—according to principles that would win broad consent".It has been said that, if it ever came to it, things would work out all right because it would be impossible to get a conviction. We surely cannot take comfort in assurances of that kind. Let us say what we mean in the Bill which may stand as an Act 928 of Parliament, and let us recognise that what anyone, however eminent, may say in or outside of this Chamber will have no effect in the end on the way in which the law is actually administered.
§ 5.15 p.m.
§ Lord Belstead
We know, as the speech made by the noble Lord, Lord Hemingford, shows, that there is disagreement in the Chamber as regards this first amendment at the Committee stage of this Bill. When we had the Second Reading of the Bill I believe that there was wide agreement in all parts of the House that the law on official secrets is in a very unsatisfactory state. That is because Section 2 of the 1911 Act penalises the disclosure of any official information however trivial and irrespective of the harm that it is likely to do. The attempt to try to find an alternative dates back to the report Lord Franks made in 1972. Six years later the Labour Government published a White Paper that followed closely the recommendations of the Franks Committee and in particular its proposal that when there was to be a test of the harm that an unauthorised disclosure would cause, a Minister would certify that the test had been met.
In 1979 the incoming Conservative Government introduced a Bill which also retained the provision for ministerial certificates. But when that Bill came to be introduced into your Lordships' House so great was the reaction against the idea of ministerial certificates that it caused the Government to withdraw the Bill and to think again. Now, 10 years later, we have brought forward this Bill which seeks to resolve the unsatisfactory nature of Section2 by identifying just six areas of information to which we believe the criminal law should apply, but leaves all the issues relevant to unauthorised disclosures to be decided by a jury. So we have genuinely tried to follow the advice that was given to the Committee by my noble friend Lord Home by making this Bill as precise as possible.
In those few instances in the Bill where we believe that all unlawful disclosures must be harmful; namely, as regards statutory warrants authorised by the Secretary of State and disclosures by members of the security and intelligence services and notified people, we say so. In all other cases; namely, in defence, international relations, foreign confidences and crime as well as security and intelligence, we set out in the Bill what we see as the harm and the degree of harm which it is necessary to cause before a criminal offence can be committed. The Government feel that there is no other basis on which a jury can be expected to decide such matters. There is no other way of ensuring that there is a responsible balance between the secrets that we must protect by the criminal law and those that do not require that protection.
The problem with this amendment is that before the Committee ever begins to examine the details of the Bill, it is in effect being asked to shoulder aside the Bill's main provisions by creating wholly new matters for a jury to attempt to decide and by changing totally the balance which the Bill strikes between those secrets which must be protected by the criminal law and those which need not. I feel 929 that my noble friend Lord Pym was absolutely correct when he warned that we are dealing here with matters that go to the very heart of our national security. We are talking about the disclosure of secrets that could mean undoubted damage to the work of our security and intelligence services, to the capability of our armed forces, and the undoubted jeopardy to our country's interests abroad, even to the loss of lives of our citizens. It could mean any of those things because a discloser was claiming that what he or she had done was in the public interest. That would have to be proved but that would be later on. For the moment there can be no going back. The disclosure would have been made and the damage done.
I ask the Committee to consider most carefully whether it can really accept a proposition that says that such harm can be done knowingly as long as the discloser can claim that on balance—or that is the effect of the amendment—it was in the public interest. I do not believe that it would be in the public interest that such harm could knowingly be done, and I am fortified in that belief by the same view expressed by many distinguished noble Lords in different parts of the Committee this afternoon. However, it is a crucial decision of principle for the Committee on the first amendment to the Bill.
I also ask the Committee to consider for a moment how the amendments would work out in practice. Let us suggest that a civil servant believes that he has evidence of some crime or fraud or has identified some abuse of authority or neglect of duty. In his view it amounts, as the amendment states, to serious misconduct. The evidence includes information which falls within one of the only half a dozen categories protected from disclosure by the Bill. Quite properly the civil servant takes the case and his suspicions to his superiors. We are asked to believe that they do nothing about it or nothing that the individual believes, as the amendment suggests, to be effective. He takes it to his head of department, with the same result. Ministers may be consulted. The civil servant exercises his right of appeal to the head of the Civil Service. If he is a member of the security and intelligence services, he takes the matter to the staff counsellor who was appointed only in 1987. The counsellor is independent and has access to all concerned, including the Secretary of the Cabinet and the Prime Minister.
The noble Lord, Lord Jay, asked me specifically what would be the situation where there was an example of, as I understood it, a Minister or a civil servant selling budget or defence secrets. As the situation exists at present, the line of responsibility would be the same as regards working up through the discipline of the Civil Service or the security or intelligence services.
However, perhaps I may add something. The present Act of 1911 covers any unauthorised disclosure of information. The new Bill does not cover official information relating to budget secrets at all. I can see no possibility in which a disclosure about selling defence secrets could be said to damage the capability of our armed forces if that was revealed. So the good-hearted person, the Crown servant who wanted to make sure that these 930 iniquities would be revealed, would not, as I understand it, be in breach of anything which is to be found in the Bill.
I am also not clear about how the civil servant can always be expected, before taking the awful step of disclosing a secret protected by the law, to judge the results of the representations that he or she would have made to line management. The amendment refers to the procedures having been gone through "without effect". I assume—and I do not mean to be sarcastic here—that that means without the effect which the individual judges to be satisfactory. But the question which I think lay behind at any rate part of the speech made by my noble friend Lord Pym was: should the individual be the one to decide? It may well be that we are talking about matters of the very greatest sensitivity which affect the security of the nation. In such an event, is it right that full and detailed information should always have to be revealed to the individual concerned? If I may say so, this bears out the warning of the noble Lord, Lord Hunt of Tanworth, who, at Second Reading, said that such a procedure would change the nature of the relationship between the individual civil servant and the government of the day which it is the civil servant's duty to serve.
Some Members of the Committee have spoken a little about the considerable uncertainties which the amendment would create. I only add that I do not believe that this amendment can ever be sufficiently clear to allow anyone to know absolutely when a disclosure would constitute a criminal offence and when it would not. My fear is that the result would not be a channel of final resort for the conscientious but a charter for damaging disclosures.
Here I believe it is just worth saying that the position for a person who is not a public servant is of course different in one very important respect. Having gained possession of protected information which the private individual believes reveals serious misconduct, such a person has no need to go through any of the avenues to get the matter resolved which would do no damage to the public interest. He or she does not need to go to the police nor to confront a Minister or take the matter to some authority or other. If a private individual thinks on balance that he or she can persuade a jury that the public interest would benefit by a little over 50 per cent. and the damage done would be a little under 50 per cent., then it could be that such a person would be led by this amendment to believe that disclosure could take place with impunity. If I may say so, I had the feeling that that lay behind the apprehension which was clearly voiced by the noble and gallant Lord, Lord Carver.
My noble friend Lord Home expressed a clear view in his speech that this legislation needed to be as precise as possible. My noble friend said that he felt that the concept of the public interest in the context of the Bill could not be expressed as clear or precise. With respect, I very much agree with my noble friend because under the Bill the matters to be considered by the court and the criteria for a jury are clear. However, as my noble friend Lord Renton showed in his speech, the amendment introduces a whole range of different issues which are much less 931 clear to establish; and in particular in court the jury would be required to weigh in the balance some public interest which is undefined. Presumably the whole range of harm or likely harm would be put in the scale on one side and the whole range of good or likely good would be put on the other. However, the list might be long and the possibilities endless. Unlike the tests that are to be found in the Bill, Parliament would not have given the court any real guidance.
It is not surprising then to find that in response to a similar proposal for a public interest defence, the Franks Committee decided that such a responsibility could not appropriately be placed on the courts. Franks said:Contentious political issues of the kind likely to arise in these cases would be very different from those issues which a jury is normally expected to decide and is regarded as best fitted to decide. Juries could find these issues difficult to handle".It is for that reason that the Bill gives juries clear issues to resolve. But the amendment would set all that aside.
I believe that the amendment is not the way in which the criminal law can operate in this area. Nor is it the way to keep the secrets on which our country depends. Surely it cannot be right to appear to encourage and provide for damage to the interests of the nation which the Bill rightly seeks to protect. It is for that reason that I ask your Lordships not to support the amendment.
§ Lord Jenkins of Hillhead
The noble Lord the Leader of the House has deployed his case most forcefully and skilfully. Nonetheless it does not meet the doubts which I have in my mind. He talks as though this would be a charter for disloyal civil servants, encouraging them to leak information in almost all circumstances.
I have the greatest belief in the desirability of the Civil Service working confidentially with Ministers. I have very little faith in the civil servants who have leaked information in the past, whether they have been acquitted or convicted. Certainly I have always greatly valued confidential relations with civil servants.
The noble Lords, Lord Boyd-Carpenter and Lord Pym, rather talked as though the amendments went immensely wider than they do. The noble Lord, Lord Boyd-Carpenter, spoke to us almost a little disparagingly as having no knowledge of these grave matters which weigh upon Ministers. He has had the responsibility of being a Minister of Pensions and National Insurance, which is an important and sensitive department. But there are some others of us who have had experience of departments which deal at least equally with matters of considerable sensitivity and who certainly have no desire to create a leakers' charter.
§ 5.30 p.m.
§ Lord Boyd-Carpenter
As the noble Lord has challenged my own experience, I must state that he omitted the fact that for a number of years I was also Chief Secretary to the Treasury.
§ Lord Jenkins of Hillhead
The position of Chief Secretary to the Treasury is an important one. I hesitate to say that there is an even more important position in the Treasury, but no doubt that will be taken into account by some Members of the Committee. However, what is undoubtedly the case is that the climate as regards leaking has changed enormously in this country from the period which I remember when the noble Lord, Lord Boyd-Carpenter, was a Minister. I was immensely struck the other day by reading in the memoirs of Lord Plowden how that great debate raged in the Government in 1952 about whether or not the pound should be allowed to float. The noble Lord, Lord Jay, will recall what the scheme was called.
§ Lord Jenkins of Hillhead
Yes, it was the ROBOT scheme. The debate went on passionately for six months, but nothing was ever leaked. If that had happened in the present Government or in one or two preceding Governments, we would have known all about the affair within 72 hours. It would be resounding from Wapping to the House of Commons and from Whitehall to the House of Lords. It would be all over the place immediately. There is a different climate nowadays, and to be honest it is the case that Ministers are responsible for most leaks.
In my view, as regards the great generality of issues, it is the climate which is the best protector of confidences and not the criminal law. How can a climate of confidence be best achieved? It is an extraordinary view to hold that this provision will encourage the generality of civil servants to believe that the legislation is a charter for leakers or an encouragement to leak in any sense of the word. I echo very much what the noble and learned Lord, Lord Elwyn-Jones, said, that to make this measure generally accepted across politics requires an amendment along these lines. If the Government think that the amendment goes too wide, let them suggest rather narrower definitions than we have proposed.
The provision would have a most beneficial effect. It would make the legislation into a non-partisan and a generally liberalising measure. It would preserve that small area which I am as intent to preserve as anybody. But at the same time it would allow a legitimate defence. I am not sure, for instance, whether the noble Lord the Leader of the House considers that juries will or will not have any regard to public interest under the legislation as it stands. I believe in practice that they will, but they will be going rather against the letter of the law. In my view that proves that the letter of the law will be rather foolish. It is much better to maintain control over the letter of the law and to make it sensible. I believe very much that by doing that we shall give this measure a wider basis of support across politics and across the Chamber. The measure may well stand on the statute book for as many decades as its predecessor of unblessed memory has done. I therefore wish to test the opinion of the Committee.
§ 5.33 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents 101; Not-Contents, 157.
|DIVISION NO. 1|
|Addington, L.||Listowel, E.|
|Airedale, L.||Llewelyn-Davies of Hastoe, B.|
|Annan, L.||Lloyd of Kilgerran, L.|
|Ardwick, L.||Lockwood, B.|
|Avebury, L.||Longford, E.|
|Barnett, L.||Lovell-Davis, L.|
|Blackstone, B.||Mcintosh of Haringey, L.|
|Bonham-Carter, L.||Mackie of Benshie, L.|
|Boston of Faversham, L.||McNair, L.|
|Bottomley, L.||Mais, L.|
|Broad bridge, L.||Mason of Barnsley, L.|
|Carmichael of Kelvingrove, L.||Mayhew, L.|
|Carter, L.||Milner of Leeds, L.|
|Cledwyn of Penrhos, L.||Mishcon, L.|
|Cobbold, L.||Monson, L.|
|Cocks of Hartcliffe, L.||Morton of Shuna, L.|
|Dacre of Glanton, L.||Nicol, B.|
|David, B.||Ogmore, L.|
|Davies of Penrhys, L.||Phillips, B.|
|Dean of Beswick, L.||Pitt of Hampstead, L.|
|Donaldson of Kingsbridge, L||Ponsonby of Shulbrede, L. [Teller.]|
|Dormand of Easington, L.|
|Elwyn-Jones, L.||Prys-Davies, L.|
|Ennals, E.||Rea, L.|
|Ewart-Biggs, B.||Ritchie of Dundee, L.|
|Ezra, L.||Robson of Kiddington, B.|
|Falkender, B.||Rochester, L.|
|Falkland, V.||Russell, E.|
|Foot, L.||Seear, B.|
|Gallacher, L.||Serota, B.|
|Galpern, L.||Shackleton, L.|
|Gladwyn, L.||Shepherd, L.|
|Graham of Edmonton, L.||Stallard, L.|
|Grey, E.||Stewart of Fulham, L.|
|Grimond, L.||Stoddart of Swindon, L.|
|Hampton, L.||Strabolgi, L.|
|Hanworth, V.||Taylor of Blackburn, L.|
|Harris of Greenwich, L.||Taylor of Gryfe, L.|
|Hatch of Lusby, L.||Thomas of Swynnerton, L.|
|Hemingford, L.||Tordoff, L. [Teller.]|
|Hutchinson of Lullington, L.||Turner of Camden, B.|
|Irving of Dartford, L.||Underhill, L.|
|Jacques, L.||Wallace of Coslany, L.|
|Jay, L.||Whaddon, L.|
|Jeger, B.||White, B.|
|Jenkins of Hillhead, L.||Williams of Elvel, L.|
|John-Mackie, L.||Willis, L.|
|Kennet, L.||Winchilsea and Nottingham, E.|
|Kirkhill, L.||Winstanley, L.|
|Kirkwood, L.||Winterbottom, L.|
|Ailesbury, M.||Blake, L.|
|Alexander of Tunis, E.||Blatch, B.|
|Alexander of Weedon, L.||Blyth, L.|
|Allerton, L.||Boyd-Carpenter, L.|
|Arran, E.||Brabazon of Tara, L.|
|Ashbourne, L.||Braye, B.|
|Balfour, E.||Brougham and Vaux, L.|
|Barber, L.||Butterworth, L.|
|Beaverbrook, L.||Caithness, E.|
|Belhaven and Stenton, L.||Campbell of Alloway, L.|
|Bellwin, L.||Campbell of Croy, L.|
|Beloff, L.||Carnegy of Lour, B.|
|Belstead, L.||Carnock, L.|
|Bessborough, E.||Carver, L.|
|Birdwood, L.||Cathcart, E.|
|Chelwood, L.||Manton, L.|
|Clitheroe, L.||Margadale, L.|
|Colnbrook, L.||Marley, L.|
|Colwyn, L.||Marshall of Leeds, L.|
|Constantine of Stanmore, L.||Maude of Stratford-upon-Avon, L.|
|Cottesloe, L.||Merrivale, L.|
|Cox, B.||Mersey, V.|
|Craigavon, V.||Milverton, L.|
|Craigmyle, L.||Monk Bretton, L.|
|Croft, L.||Mottistone, L.|
|Cross, V.||Munster, E.|
|Davidson, V. [Teller.]||Murton of Lindisfarne, L.|
|Deedes, L.||Napier and Ettrick, L.|
|Denham, L. [Teller.]||Nelson, E.|
|Dundee, E.||Newall, L.|
|Eden of Winton, L.||Norfolk, D.|
|Elibank, L.||Norrie, L.|
|Ellenborough, L.||Northesk, E.|
|Elliot of Harwood, B.||Nugent of Guildford, L.|
|Elton, L.||Oppenheim-Barnes, B.|
|Erne, E.||Orkney, E.|
|Erroll of Hale, L.||Orr-Ewing, L.|
|Faithfull, B.||Oxfuird, V.|
|Ferrers, E.||Penrhyn, L.|
|Fraser of Carmyllie, L.||Peyton of Yeovil, L.|
|Fraser of Kilmorack, L.||Piatt of Writtle, B.|
|Gardner of Parkes, B.||Porritt, L.|
|Gibson-Watt, L.||Prior, L.|
|Goold, L.||Pym, L.|
|Gray of Contin, L.||Reay, L.|
|Greenhill of Harrow, L.||Renton, L.|
|Greenway, L.||Renwick, L.|
|Gridley, L.||Rodney, L.|
|Hailsham of Saint Marylebone, L.||Rollo, L.|
|Halsbury, E.||Rugby, L.|
|Hankey, L.||Saltoun of Abernethy, Ly.|
|Harmar-Nicholls, L.||Sanderson of Bowden, L.|
|Havers, L.||Seebohm, L.|
|Hayter, L.||Shannon, E.|
|Headfort, M.||Sharples, B.|
|Henley, L.||Skelmersdale, L.|
|Hertford, M.||Southborough, L.|
|Hives, L.||Stodart of Leaston, L.|
|Holderness, L.||Strange, B.|
|Home of the Hirsel, L.||Strathcarron, L,|
|Hooper, B.||Strathclyde, L.|
|Jenkin of Roding, L.||Strathspey, L.|
|Johnston of Rockport, L.||Sudeley, L.|
|Joseph, L.||Suffield, L.|
|Kaberry of Adel, L.||Taylor of Hadfield, L.|
|Killearn, L.||Teviot, L.|
|Kimball, L.||Thomas of Gwydir, L.|
|Kinloss, Ly.||Thurlow, L.|
|Kinnoull, E.||Trafford, L.|
|Lauderdale, E.||Trefgarne, L.|
|Layton, L.||Trumpington, B.|
|Liverpool, E.||Vaux of Harrowden, L.|
|Lloyd of Hampstead, L.||Weir, V.|
|Long, V.||Whitelaw, V.|
|Lyell, L.||Windlesham, L.|
|McFadzean, L.||Wise, L.|
|Macleod of Borve, B.||Wynford, L.|
|Malmesbury, E.||Young of Graffham, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.42 p.m.
§ Lord Mishcon moved Amendment No. 2:
§ Page 1, line 9, leave out ("discloses") and insert ("makes a damaging disclosure of").
§ The noble Lord said: I hope that I can be rather more brief in regard to this amendment than we had to be in relation to the previous amendment. However, the principle involved is still a very serious one. If I quote the Leader of the House correctly, in relation to the last amendment he talked at all times 935 about disclosures which were "damaging disclosures" or "injurious disclosures". He was referring to disclosures under Clause 1. It is unfortunate that in the Bill the word "damaging" does not occur in front of the word "disclosure". That means that whatever the disclosure may be an offence has been committed, whether or not the disclosure causes the slightest harm.
§ Perhaps I may give an example of what would be an offence under the provision as it presently stands. I hope that it is not a reductio ad absurdum. Someone in the intelligence service or who was previously in the intelligence service may decide to write an article in which he says that the reason that people in the intelligence service are not more intelligent (and he feels that in some ranks they are not at all intelligent) is because the pay is very poor. He then talks about the pay in the Civil Service. He may say that in his view members of the intelligence service ought to be people who do not drink and certainly do not drink excessively but in his experience too many members of the intelligence service drink. He may say that people who enter that service ought to be very much better briefed and educated and he may give examples to show that people who enter the intelligence service have no academic qualifications whatever. Without any doubt, however absurd my examples may seem to the Committee, an offence would have been committed because there had been a disclosure in regard to the intelligence service, its establishment or whatever it may be.
§ It is not sufficient to laugh and say that the Attorney-General has to decide whether or not there will be a prosecution and that he is unlikely to decide to prosecute in the cases which I have enumerated. That is not a sufficient answer. Someone in the intelligence service or who has worked in it in the past must know, and a newspaper must know, whether or not a criminal offence is being committed. We are not considering whether or not a prosecution would be brought.
§ To quote the Leader of the House once again, I hope not unfairly, every time he referred to a disclosure he talked about a "harmful" disclosure. That is all this amendment seeks—that a disclosure in respect of which a criminal offence is committed should at least be a harmful disclosure. I beg to move.
§ 5.45 p.m.
§ Lord Alexander of Weedon
In the last legal year I argued the government case in the Spycatchersaga in three courts with, on each occasion, less than total success. Therefore I hope that my opposition to this amendment does not blight the response that may be given on behalf of the Government.
I seek to suggest that, as the noble Lord, Lord Mishcon, said in connection with the previous amendment—on which, had time permitted, I should have liked to have intervened briefly—the problem is a practical one. The practical problem is how one gets evidence on this type of issue before a jury. I think that I am right that throughout this century the courts have taken the view, whether in cases concerning prize ships in the First World War, 936 the invasion of the Wethersfield air base, or most recently in the case concerning trade union rights at GCHQ, that they would rarely second guess the Government on issues of national security.
I think that it is also right that the European Court of Human Rights substantially shares that view. If I remember correctly in a case concerning admission to the Swedish Navy the Court of Human Rights accepted that a domestic government had a substantial personal margin of appreciation on issues of national security. That, to me, illustrates the difficulty of putting before judges and at least equally before juries material in this area. In the case of the last amendment the jury would have had to comb through the activities of the security service to decide whether there had been misconduct and to decide whether revelation would do great harm.
In the case of this amendment is it right that it might be necessary to put evidence before a jury to show that a disclosure was damaging? Would it be possible that the defendant would argue that the disclosure was in the interests of the service and not damaging to the security of the nation? If so, would the prosecution have to lead evidence to show precisely where the damage had been done? In this very difficult area (and, personally, I think in this area alone) it is probably necessary that there should be an absolute blanket—an absolute blanket which precludes the inclusion of a word such as "damaging".
I wish to add one further reflection. Despite the fact that, on practical grounds, I believe that there needs to be a blanket, I also believe that there may be the occasional, very rare situation, as has been mentioned in the Chamber this afternoon, when there is unease as to whether the established procedures alone are sufficient to investigate what is said to have taken place. I hope that complaints that the Government use the service to suborn opposition parties will be rare. I hope that complaints, as in the Peter Wright case, that members of the service seek to suborn or undermine the elected government will be rare. I hope that suggestions of massive bribery in government contracts will be rare.
However, if an allegation is made within the established procedures of serious misconduct and if the person within the service making that allegation is not in the end satisfied, I very much hope that the Prime Minister of the day will in those situations not hesitate to call in the Security Commission to give an independent judicial evaluation of what has taken place. I believe that that would be good for public confidence in the service and that it would quickly defuse any over-sensational allegations such as those made by Mr. Peter Wright which gained a certain credibility before his motives and the content of his work became somewhat suspect.
I believe that the use of the Security Commission as an independent body in rare cases of allegations of serious misconduct is a better course than doing anything that would erode what I suggest should be the blanket confidence of the position of the service. In view of that, I respectfully invite noble Lords to reject the insertion in the clause of the word "damaging".
§ Lord Hutchinson of Lullington
It is an honour to follow the noble Lord, but he has clearly been affected by his long attempts in the Spycatchercase to get court after court after court to accept a proposition which was put forward by him on behalf of the Attorney-General and which the Committee will remember was described by Mr. Justice Scott as a proposition that could only be found to be adopted behind the Iron Curtain. Furthermore, when the noble Lord went to the Judicial Committee of this House, the noble and learned Lord who dealt with the case said that, in our courts, there are no absolutes in relation to the law of confidence.
I say with the greatest possible respect to the noble Lord that surely there should not be absolutes. Surely the whole point of the abolition of Section 2 was to get rid of the blanket. The blanket was the problem in Section 2 of the current Act. Surely that has been what has lain behind all the attempts to remove Section 2. Why did we all want to get rid of Section 2? Why have there been all those reports? The answer is because Section 2 was a blanket section. We come back to the problem of what has been called the cups of tea syndrome; namely, that absolutely anything that is disclosed is an offence under Section 2 if it comes from a civil servant who has learnt it from his work.
When we came to look at the Bill it was a great sadness to see that in Clause 1 we were back exactly where we were before—right back at the beginning all over again. Surely in a mature democracy all we are trying to do here is to say that if someone makes a disclosure, it must be damaging. That is all. A person commits no offence if he discloses information about cups of tea; such information as the noble Lord, Lord Mishcon, mentioned a few moments ago; or rubbish or stale information that is of no harm to anyone. I suggest to the Committee that the worst thing that can do so far as concerns the law is to have a law that is constantly broken or constantly held in disrepute.
I say to the noble Lord, Lord Alexander, that if there is a blanket offence, the absolutely inevitable result is leak, leak, leak. There will inevitably be investigative journalism concerning the matter, books and articles on the subject and journalists fed by disloyal civil servants, as we have seen in the last 20 years. Why? The answer is because there is an absolute offence. It is fatal to have an absolute offence because people will not obey it. Furthermore, juries will not obey it. That was why capital punishment for stealing sheep came to an end. Juries will not stand for such things. No one will ever respect a law which states that an official commits a crime and may go to prison for disclosing something for which he has no defence at all and in respect of which one does not have to prove that he has done any harm. Surely, in a mature democracy such as ours, we should never allow such a position to occur and should not have it on the statute book. All that we are doing in the amendment is to say: yes, of course, we must have security, but in every case harm must be established.
Lord Campbell of Croy
I should like to remind Committee Members that this clause is limited to 938 members of the security and intelligence services and what must be a small category of other people who have worked closely in the same work as that performed by those services. From what the noble Lord, Lord Hutchinson of Lullington, said—he referred to civil servants at onepoint—he appeared to speak to a much greater part of the Bill, including other clauses that deal with departments and others who have knowledge of the secrets with which the Bill deals.
Nonetheless, I understand the reason for seeking to change the wording of the clause so as to introduce the word "damaging". It is in this clause, dealing with the intelligence and security services, that that word does not appear. The present wording is:guilty of an offence if without lawful authority he discloses any information, document or other article relating to security or intelligence.Noble Lords will recall that, in the middle of March just over a year ago, I initiated a debate on the security and intelligence services. My reason for proposing the debate was to urge the Government, when they carried out—as I had been pleading for in this Chamber for several years—a reform of Section 2 of the Official Secrets Act, to put those services into a separate section of the new Bill because they had to be dealt with differently. Almost everything that the services do must be secret if they are to remain secret. That is why I understand the wording that now appears in the Bill. The amendment has given us a useful opportunity to discuss the matter, but the people dealt with in this clause are in quite a different category from those in the following clauses.
The noble Lord, Lord Mishcon, produced complaints about pay and drink in the services. That is exactly the kind of point which should be dealt with by the staff counsellors. A staff counsellor for these services was introduced in 1987 and we understand that the system has been working quite well. Complaints about ordinary matters within those services now have and have had since 1987 a channel through which they can be raised. I gladly give way to the noble Lord, Lord Mishcon.
§ Lord Mishcon
The noble Lord is most courteous. He is absolutely right to answer my argument with regard to existing members of the intelligence service and the existence of the staff counsellor. Perhaps I did not make myself clear. I tried to instance the case of someone who had been a member of the intelligence service and who is writing his biography, doing it perfectly correctly and not revealing any secrets. He writes that during his time there he noticed that some people drank too much. He can not go to the staff counsellor because he is no longer a member of the service. Or he may say that he regarded the entrants to the intelligence service as not being of sufficiently high standard, giving reasons for his views as pay and so on. That would constitute an offence. It may have been a weak argument or a strong one but that was my argument.
Lord Campbell of Croy
Of course if the man were writing a biography, then certainly, like ordinary civil servants—and particularly members of the 939 intelligence and security services—he should have submitted a draft to be vetted in the way we have all approved. It has been done in the past and should be done in the future, and that point would no doubt be brought to his attention. If he then wilfully continued to include certain items, then I should be happy to go along with the wording of the Bill as it stands. The man would only be asked to take out a matter which related to security or intelligence and which clearly would cause difficulties because it disclosed some secret operations or indicated a place of work, or something of that nature, which was connected with those services. Matters which are quite ordinary for people in other departments are matters of secrecy where those services are concerned. Therefore, they have to be dealt with in a section which is separate from the rest of the Bill. That is the one with which we are now dealing and at which the amendment is aimed.
I certainly do not agree with this amendment, although I understand the reason for raising the matter. It has given me the opportunity to remind the Committee that over a year ago and before the White Paper appeared, I urged the Government to put these services in a separate section and deal differently with them. In addition I said that at the time of recruitment it should be made absolutely clear to entrants their obligation of silence. I do not suggest that I persuaded the Government. I simply say that I am very happy that the Government, at the time that I spoke—namely, 16th March—were coming to the same conclusion. It is only courteous that I should now say again to the Government that I believe that they are doing the right thing and that this clause is of a different kind from others with which we shall deal later in the Bill.
§ 6 p.m.
§ Lord Dacre of Glanton
I wish to support this amendment basically for the same reasons that have been advanced by the noble Lord, Lord Hutchinson of Lullington. Frankly, this blanket veto is absurd and unworkable. I should declare an interest. I am a former member of the intelligence service. As such, I suppose I fall under the ban. I have only my own experience to draw on. Former members of the intelligence service are called upon frequently, quite publicly and openly, to give an account of events—a long time ago, admittedly. But there is no terminus in the clause; there is no 30-year rule. Members are banned for ever. I am afraid however that we do not pay any attention to that ban. Let us face the facts.
A few weeks ago I was invited to give an address to a thoroughly respectable body about intelligence matters during the last war. I had some doubts at first about whether I should so so. My doubts were removed when I found that the previous address had been given by no other than the noble Lord, Lord Franks. I knew that I could not be in any better company. So I talked to that group of people. Among them I noticed many distinguished former ambassadors, senior civil servants and respectable academics. I suppose that when I received the invitation the proper procedure would have been to apply to the head of the department representing the 940 one of which I had been a member 40 years ago. However, it would perhaps have taken some time to follow through. That kind of invitation is being proffered all the time.
When the edges of the law are eroded in this way by constant pressure, the law itself comes into disrepute. There is an excellent periodical of a high scholarly standard, published quarterly and now in its fourth year, called Intelligence and National Security. Many of the articles it contains are written by former members of the intelligence service. I do not know whether they all obtain the necessary clearance but I have reason to believe that they do not. This happens in broad daylight, everyone knows about it and nobody minds. We are not people such as Peter Wright. The writers of the articles are all responsible people. What is the point of having a ban which will not be observed? None of those people will be prosecuted. I know that perfectly well. I do not expect to be prosecuted myself, although perhaps I shall be after this.
The plain fact is that if this legislation comes into force it will be eroded constantly at the fringes all the time. Moreover, it is reactionary in comparison with the existing position. On 12th January 1978 the then Foreign Secretary, Dr. David Owen, made a statement in the other place in which he gave an assurance that former members of the intelligence service had a limited freedom to write and express themselves on these subjects. I shall quote his words from Hansard:Those who gave the undertakings of reticence"—that is to say, those people who had accepted the obligation of perpetual secrecy—are now absolved from them to the limited extent that they may now disclose the fact that they worked on or used material based on intercepted radio messages of the enemy armed forces. They may, for example, acknowledge having worked as interceptors, cypher breakers, distributors or users of this material, and may reveal what they know of the use made of it in the conduct of the war". [Official Report, Commons, 12/1/78; col. 829.]That was a limited freedom given by the Foreign Secretary at that time. This clause will abolish that freedom. Therefore, to that extent, it is retrogressive. I agree that generally speaking this is a liberal measure. I approve the Bill in itself as being a gesture of liberalisation. However, I think that it is retrogressive and I shall vote in favour of the amendment. I hope that other members of the Committee will do so too.
§ Lord Renton
I hope that I can set at rest some of the fears expressed by my noble friend Lord Dacre of Glanton. Let us take the lecture that he mentioned, or any lecture that he may wish to give in the future. Within the terms of the clause all that he has to do is obtain lawful authority. On the wording of the clause, which relates to the disclosure of any information and so on, I wish to remind the Committee that we were taught—and the knowledge of the noble Lord in this respect must be far greater than mine, derived as it was from only six years' experience in the army during the war— that security consisted in building up a big picture from a very large number of small pieces. Any little piece of information could add considerably to the picture. There were many little bits of information which 941 added hardly anything in themselves but each was important in building the picture. Therefore if we are to have this amendment, what will happen within the security and intelligence services is that instead of every piece of information being important, there will be two categories of information: damaging and non-damaging. In my opinion that would make a nonsense of security. That is my first objection to this amendment.
My second objection is that the word "damaging" is ambiguous. Does it mean in a particular case coming before a jury that the prosecution would have to prove that the disclosure of the piece of information did in fact damage; or would it merely have to prove that it was potentially damaging? We are left in the dark about that. I do not think that the noble Lord, Lord Mishcon, who is an exceedingly shrewd lawyer, would wish to redraft it in such a way as to force upon himself a decision as to which of the two possible meanings it would have.
§ Lord Mishcon
I am grateful to the noble Lord, Lord Renton, for allowing me to give an explanation in view of the fact that he has called upon my name.
Clause 2 of the Bill states:A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he makes a damaging disclosure".Under the provisions of this Bill, that matter would have to be left to the jury unless he intends when we reach Clause 2, under his argument, to try to omit the word "damaging" because it is impossible for the jury to decide.
§ Lord Renton
At first sight that is a very fair point for the noble Lord to have made. However we are not dealing here with damage to defence. I can well see that in relation to defence, disclosure which was potentially damaging can be just as dangerous as disclosure which did in fact damage. But in relation to security surely this is not a distinction which ought to be made, bearing in mind that all information relating to security is potentially important.
§ Lord Hutchinson of Lullington
I am grateful to the noble Lord, Lord Renton. If one reads Clause 1(4) one finds that "damaging" is spelt out. Clause 1(4)(a) states:it causes damage to the work of, or any part of, the security and intelligence services".Clause 1(4)(b) states:it is of information or a document or other article which is such that its unauthorised disclosure would be likely to cause such damage".The jury would therefore have to decide, according to how a person was charged, whether it came under paragraphs (a) or (b). It is spelled out in the Bill.
§ 6.15 p.m.
§ Lord Renton
Again a very fair point has been made which deserves an answer. I doubt whether I am qualified to answer except to say that that is not a reference to subsection (1) to which this amendment refers. Perhaps one of my noble friends on the Front Bench can explain why in subsection (3) we refer to 942 damaging disclosures but in subsection (1) we do not. I should have thought that subsection (1) is right as it stands, and I do not propose in answer to this question to elaborate upon that. I am saying that to introduce in subsection (1) a reference to damaging seems to me to confuse the matter.
One should also consider how this would be put to a jury. If the case is brought under subsections (3) and (4) the matter would have to be put to the jury in the way that would arise if the amendment were accepted under subsection (1). However, let us consider how it would apply if the amendment to subsection (1) were made. The burden would be upon the prosecution to prove that it was damaging. We do not have that explained, even in Amendment No. 5. which has been discussed with this amendment. Therefore the prosecution would prove its case presumably by getting a member of the security and intelligence services to say why it was actually or potentially damaging. I do not know whether the defence would call a retired member of the security service to give evidence to say, no, it was not damaging. However, I can see that we would reach a position of some difficulty when it came to trying to assist the jury. It is far better under subsection (1)—I am not dealing with subsections (3) and (4)—that the jury should be left with the simple issue of whether, without lawful authority, the defendant had disclosed any information, and so on. For that third reason I too am opposed to this amendment.
§ Lord Hemingford
At issue here is whether a distinction is to be made in the approach adopted for a member of the security intelligence services and that adopted for someone who has been a Crown servant or government contractor.
The purpose of this amendment would be to put both those types of people on the same footing whereas the Bill at the moment puts them on different footings. Most Members of the Committee who have opposed the amendment have talked of their hope and expectation that such and such would be the outcome. We feel that we should not leave it to hope. We should pin it down more precisely.
§ Lord Harmar-Nicholls
The noble Lord who has just spoken clarifies in my mind the fact that I cannot accept the amendment on the basis of the argument we have heard in the short debate so far. There ought to be a difference between contractors and members of the Civil Service, and those who are employed as security and intelligence officers.
§ Lord Hemingford
Perhaps I may say that we are not only talking about contractors but also Crown servants.
§ Lord Harmar-Nicholls
There ought to be a difference. That is the point that we should keep in mind when we are examining the merit or demerit of this amendment. My noble friend made the point that this blanket cover that it is suggested ought to be amended applies only to security and intelligence personnel who, when they take it on, realise the special responsibilities that will be theirs in that service.
§ Lord Mishcon
I do not want to keep bobbing up and down, but the Committee is always very kind. The noble Lord, Lord Harmar-Nicholls, will, I am sure, realise the absurdity in cases where a member of the intelligence service is talking to a Minister responsible for security. That Minister, defined in the Bill as a Crown servant, makes a disclosure which is an offence under the Bill. In his case the prosecution would have to prove that it was damaging. This is covered by subsections (3) and (4). The poor member of the intelligence service, if he made the disclosure direct, would be guilty whether or not the disclosure was harmful. If the noble Lord can think of a more Alice-in-Wonderland situation than that, I invite him to give it to the Committee.
§ Lord Harmar-Nicholls
I am always terribly impressed with the vocabulary of the noble Lord, Lord Mishcon. He referred to the "poor" intelligence officer. I should refer to him as the important intelligence officer and security man because he is carrying the load and the risk which is much greater than is likely to be carried by the contractors or the Crown servants who do not come into that category. A minute or two ago the noble Lord, Lord Hutchinson, again using this emotive language, put me on the alert. He spoke about a "mature democracy" which would not do this and that. I hope that a mature democracy will be really mature when it is prepared to take common sense into account as well.
I understand the points made by the lawyers in this debate. The purists in law ought to be concerned about the niceties and about what could or could not happen in extreme circumstances. That is their duty and their value. That was why I listened to them. But I do not always accept their purist attention to those niceties as necessarily carrying out what we require to be carried out. We want to be certain that the people who carry the great risks because of the special job that they have ought to be recognised and put in a category whereby that can be dealt with.
When my noble friend Lord Dacre was giving his lecture the other day, knowing his great reputation (which I admire very much) I should be surprised if he had not done some considerable preparation before he used the words that he did in that lecture. I should not have thought that it was a great hardship, bearing in mind the possible risks of a slip of the tongue, because of his connection with the service, whether it was 40 years ago or not. I should not have thought that it was asking too much for him to take advantage of the facilities to check up where there may be that risk. He would with all his other points, so why not with that one?
If one had listened to the debate that we have had thus far and if one came to a conclusion on it as a layman, which is all I can do, I do not think one would conclude that the danger comes from the law as expressed by the noble Lord, Lord Mishcon. The danger that causes public disquiet is the way in which the law is used eventually. The noble Lord, Lord Mishcon, is so skilled in putting up what could be the argument against this case by talking of it in honeyed terms and he then rather undermined the 944 force of the objection. It is important to know that, given the blanket protection—which I agree with my noble friend Lord Alexander should be there in these situations—that protection is not automatically pushed to the ultimate. The Attorney-General and others have to take these matters into account and they would not allow these extreme things, the cups of tea syndrome and the others, to happen. If they did allow them to happen that would not be a criticism of the law, but a criticism of the Attorney-General or the people in official positions as watchdogs in not allowing common sense to be included in the application of the law.
I am satisfied on the balance of the debate as I have heard it thus far, that it would not be good if it were to allow the blanket protection to be diluted by the word "damaging" which, as my noble friend said, cannot easily be described in any case.
§ Lord Belstead
The noble Lord, Lord Mishcon, skilfully endeavoured to drive a wedge into the arguments that have come from this side of the Committee by making the point that it would be absurd, as the noble Lord saw it, when a member of the security services was talking, let us imagine, to the Minister with responsibility for the security services and there was trouble as a result of that conversation. Thus the member of the security services could be accused of an absolute offence under Clause 1(1), but the Minister would find that he had the benefit of having a harm test under Clause 1(3) and (4). When we come quite soon to the amendments on the Marshalled List dealing with notification, I think my noble friend Lord Ferrers will be saying that it is certainly the Government's intention that a Minister of that kind will be notified and will therefore fall under the bracket of Clause 1(1).
The noble Lord, Lord Mishcon, was quite right to make the point, but I am also justified in giving a reply, not just for the sake of a reply, but because it shows that the Government believe that it is essential to expect and require that those to whom some of our most sensitive secrets are entrusted do not make unauthorised disclosures about their work or the work on which they were once engaged.
§ Lord Mishcon
I hope that the Leader of the House will forgive me. I used the words "Alice in Wonderland" before, but he realises that the Minister he is talking about would have to serve the notification and he would therefore have to serve it upon himself.
§ Lord Belstead
This is a matter to which we shall come in a little while. It is quite important that, as in another place, in this House we put on record the Government's intentions about notification, precisely for the reason that the noble Lord has given me across the Table.
To give a signal, as these amendments do, that it is acceptable to make such disclosures without authority, in certain circumstances constitutes a risk which I cannot advise the Committee to take. I was grateful to my noble friends Lord Campbell of Croy, Lord Renton and Lord Harmar-Nicholls for clearly bringing out the point that when a member of the 945 services breaks the trust placed in him he does not just disclose information—he undermines the trust and confidence on which the work of the service depends; the confidence of those who provide it with information; the confidence of members of the services in each other; and the confidence of the public in the ability of the services to protect them. People in this country and abroad have a right to expect that what they tell the security and intelligence services and any help they give, will not become common currency either now or in the future.
My noble friend Lord Renton talked about the gathering of intelligence being the gathering of small pieces of information to make up the big picture. Without that confidence the security and intelligence services finally will find themselves unable to protect us. Anything which weakens that and which calls it into question, lessens the protection that we must have. That is why we believe that the interests of this country are bound to be damaged every time a member of the services disregards his duty and breaks the trust placed in him.
There is nothing new in this approach. Members of the services and others working closely with them have always recognised that they work in an area where any unauthorised disclosure is a most serious matter. My noble friend Lord Campbell of Croy, whenever he speaks on this subject, always makes the point that it must be right that any member of the services coming into the service for the first time must always be warned that that is one of the absolutely fundamental terms and conditions of the service which that person is joining.
I was interested to note that, for the reasons which he deployed, my noble friend Lord Alexander of Weed on also came down against the amendment and in favour of having a blanket prohibition in respect of Clause 1(1). My noble friend put forward a most interesting point about the desirability of my right honourable friend the Prime Minister referring extreme cases of iniquity to the Security Commission. I can give no commitment as to when in the future the Security Commission might be called upon to investigate and report upon the circumstances in which a breach of security is known to have occurred. However, my noble friend Lord Alexander was absolutely right to remind the Committee of the availability of the Security Commission. The record shows that since 1979 the Government have not been slow to refer relevant matters to the commission. The staff counsellor was appointed following consideration of the Security Commission's report in the Bettaney case.
Finally, I urge Members not to send a signal from the Committee that the amendment means that, rather than trust being the essence of a person's work in the security and intelligence services, somehow it does not always matter and it all depends. What it depends on is critical to the effectiveness of the security and intelligence services. It is vital that their members should be confident that they can work in the secrecy on which so many lives and the safety and security of this country depend. The security and intelligence services can work effectively on no other terms and I ask Members of the Committee not to support the amendment.
§ Lord Mishcon
The Committee will not welcome a lengthy answer to what has been said by the Leader of the House. He has deployed perfectly fair arguments, as have other Members who have particpated in the debate. However, I should like to emphasise in short sentences the reason for my hoping that the Committee will pass the amendment.
First, one does not wish to have an absurdity upon the face of a Bill passed by this Committee. The absurdity is that the issue relates not only to existing members of the security services but also to past members. The noble Lord, Lord Dacre, who is experienced in such matters, gave examples of the absurdity of putting on the face of the Bill an absolute offence, so that any disclosure of any kind in regard to matters relating to the intelligence service becomes a criminal offence. My answer to those Members who have mentioned the Attorney-General is that I am not talking about whether a prosecution will occur but about whether a criminal offence is being committed and whether, in such circumstances, somebody must say, "I am awfully sorry, I cannot even tell you the years during which I was a member of the intelligence service. I believe that it would be an offence because it is a disclosure in regard to the intelligence services". Indeed, it would be, as would any single detail.
I mentioned the fact, as I believed I was entitled to do, that in the subsequent subsections of Clause 1 a Minister would be in the situation of committing an offence only if the disclosure was harmful. I am not dealing with the point about notification, which was a perfectly proper point for the Leader of the House to make. However, I cannot resist the temptation of telling him that, in the circumstances of which he spoke, the Minister would have to serve the notice on himself and I should love to be a witness to such an event.
I raised that issue in answer to the noble Lord, Lord Renton, because I wished to point out that it cannot be difficult to prove damage, if damage must be proved, in regard to subsections (3) and (4) of the clause.
From my point of view, further discussion will not be of advantage. The arguments have been deployed and I believe that the opinion of the Committee should be tested.
§ 6.35 p.m.
§ On Question, Whether the said amendment (No. 2) shall be agreed to?
§ Their Lordships divided: Contents 85; Not-Contents, 120.
|DIVISION NO. 2|
|Addington, L.||Carmichael of Kelvingrove, L.|
|Airedale, L.||Carter, L. [Teller.]|
|Amherst, E.||Cledwyn of Penrhos, L.|
|Annan, L.||Cobbold, L.|
|Ardwick, L.||Dacre of Glanton, L.|
|Barnett, L.||David, B.|
|Blackstone, B.||Davies of Penrhys, L.|
|Bonham-Carter, L.||Dean of Beswick, L.|
|Brooks of Tremorfa L.||Donoughue, L|
|Callaghan of Cardiff, L.||Dormand of Easington, L.|
|Elwyn-Jones, L.||Mishcon, L.|
|Ewart-Biggs, B.||Monson, L.|
|Falkender, B.||Mountevans, L.|
|Foot, L.||Mulley, L.|
|Gallacher, L.||Ogmore, L.|
|Galpern, L.||Phillips, B.|
|Gladwyn, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Grimond, L.||Prys-Davies, L.|
|Hampton, L.||Ritchie of Dundee, L.|
|Harris of Greenwich, L.||Robson of Kiddington, B.|
|Hatch of Lusby, L.||Rochester, L.|
|Hemingford, L.||Russell, E.|
|Hutchinson of Lullington, L.||Seear, B.|
|Irving of Dartford, L.||Serota, B.|
|Jay, L.||Stewart of Fulham, L.|
|Jeger, B.||Stoddart of Swindon, L.|
|Jenkins of Hillhead, L.||Strabolgi, L.|
|Jenkins of Putney, L.||Taylor of Blackburn, L.|
|Kilbracken, L.||Taylor of Gryfe, L.|
|Kirkhill, L.||Thomas of Swynnerton, L.|
|Lawrence, L.||Tordoff, L.|
|Llewelyn Davies of Hastoe, B.||Turner of Camden, B.|
|Lockwood, B.||Underhill, L.|
|Longford, E.||Vernon, L.|
|Lovell-Davis, L.||Wallace of Coslany, L.|
|McGregor of Durris, L.||Whaddon, L.|
|McIntosh of Haringey, L.||White, B.|
|Mackie of Benshie, L.||Williams of Elvel, L.|
|McNair, L.||Winchilsea and Nottingham, E.|
|Mason of Barnsley, L.||Winstanley, L.|
|Mayhew, L.||Zuckerman, L.|
|Aldington, L.||Greenway, L.|
|Alexander of Tunis, E.||Gridley, L.|
|Alexander of Weedon, L.||Halsbury, E.|
|Allerton, L.||Harmar-Nicholls, L.|
|Arran, E.||Havers, L.|
|Balfour, E.||Henley, L.|
|Barber, L.||Hertford, M.|
|Beloff, L.||Hives, L.|
|Belstead, L.||Holderness, L.|
|Bessborough, E.||Home of the Hirsel, L.|
|Blake, L.||Hooper, B.|
|Blatch, B.||Jenkin of Roding, L.|
|Boyd-Carpenter, L.||Johnston of Rockport, L.|
|Brabazon of Tara, L.||Joseph, L.|
|Brougham and Vaux, L.||Kaberry of Adel, L.|
|Butterworth, L.||Kimball, L.|
|Caithness, E.||Lauderdale, E.|
|Campbell of Alloway, L.||Layton, L.|
|Campbell of Croy, L.||Liverpool, E.|
|Carnegy of Lour, B.||Long, V.|
|Carnock, L.||Lyell, L.|
|Clitheroe, L.||Macleod of Borve, B.|
|Colnbrook, L.||Malmsbury, E.|
|Constantine of Stanmore, L.||Margadale, L.|
|Cottesloe, L.||Maude of Stratford-upon-Avon, L.|
|Craigmyle, L.||Merrivale, L.|
|Crickhowell, L.||Mersey, V.|
|Croft, L.||Milverton, L.|
|Cross, V.||Monk Bretton, L.|
|Davidson, V. [Teller.]||Mottistone, L.|
|Denham, L. [Teller.]||Munster, E.|
|Dundee, E.||Mutton of Lindisfarne, L.|
|Eden of Winton, L.||Nelson, E.|
|Elliot of Harwood, B.||Newall, L.|
|Elton, L.||Norfolk, D.|
|Erne, E.||Norrie, L.|
|Faithfull, B.||Northesk, E.|
|Ferrers, E.||Nugent of Guildford, L.|
|Fraser of Carmyllie, L.||Oppenheim-Barnes, B.|
|Fraser of Kilmorack, L.||Orkney, E.|
|Gardner of Parkes, B.||Orr-Ewing, L.|
|Goold, L.||Penrhyn, L.|
|Gray of Contin, L.||Peyton of Yeovil, L.|
|Pym, L.||Sudeley, L.|
|Reay, L.||Suffield, L.|
|Rees, L.||Swinfen, L.|
|Renton, L.||Teviot, L.|
|Renwick, L.||Teynham, L.|
|Rodney, L.||Thomas of Gwydir, L.|
|Rollo, L.||Thurlow, L.|
|Romney, E.||Trafford, L.|
|Saltoun of Abernethy, Ly.||Trefgarne, L.|
|Sanderson of Bowden, L.||Trumpington, B.|
|Sharples, B.||Vaux of Harrowden, L.|
|Skelmersdale, L.||Whitelaw, V.|
|Southborough, L.||Windlesham, L.|
|Stoddart of Leaston, L.||Wise, L.|
|Strange, B.||Wyatt of Weeford, L.|
|Strathclyde, L.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 6.43 p.m.
§ [Amendments Nos. 3 to 5 not moved.]
§ Lord Mishcon moved Amendment No. 6:
§ Page 1, line 27, after ("causes") insert ("serious").
§ The noble Lord said: We have now reached another very important amendment to this Bill and a very important principle indeed. It is the introduction of the word "serious" in this part of the Bill. It may very well be for the convenience of Members of the Committee that participants also deal with other parts of the Bill, Clause 1 having now been completed.
§ In my submission there are three reasons for this amendment to be accepted. First, when the Leader of the House made earlier references to the Franks Committee and remarked upon the findings of that committee, he expressed his obvious respect for those findings. As I shall show to the Committee, the Franks Report keeps on talking about "serious damage" as being the proper medium for dealing with offences under this Bill other than those covered by Clause 1.
§ The second reason which I wish to advance to the Committee for agreeing to this amendment is that when great consideration was given by the Government to this matter of Section 2 on the previous occasion when legislation was before us— namely, in the 1979 Bill—"serious harm" was the element which was always employed. Again I am not dealing with matters covered by Clause 1, with which we have already dealt.
§ Thirdly, ministerial statements have been made recently and in the other place and in articles written by the Secretary of State where, on various occasions, he or Ministers have talked in terms of "serious harm" when they have mentioned the word "harm" or "serious damage" or "seriously jeopardising".
Perhaps I may go immediately to the Franks Report. I promise the Committee that my quotations will be as brief as I can make them but there are many references in the Franks Report to the need for this to be a "serious" matter. I suppose that I should refer formally to the fact that I am dealing with the report of the departmental committee on Section 2 of the Official Secrets Act 1911, Cmnd. 5104. Paragraph 110 of the report states (and I am
only omitting words which are unnecessary in regard to the point which I am making):
We therefore reject the notion that criminal sanctions should be retained for all official information which a Government may reasonably wish to withold … The additional protection of the criminal law should be reserved for that official information which it is most important to protect".
Paragraph 117 states:
strong measures are clearly justified in preventing serious injury to the nation. It is less clear that the criminal law must be brought in to reinforce other means of protection where the possible injury is of a less serious nature. In our view the appropriate test"—
and again I am leaving out words which do not matter—
in relation to national security, is that unauthorised disclosure would cause serious injury to the nation".
Paragraph 118—and again I leave out the words which do not matter—states:
We do not, however, believe that the restriction of the criminal law to disclosures causing serious injury to the nation would involve significant risks. Restricting the scope of criminal sanctions in this way seems to us preferable to their retention for a wide range of less important information, which can be protected by other measures".
My last quotation from that report is from paragraph 119 which states:
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 next move to the second line of argument which was the 1979 Bill. "Serious injury" was the term adopted there and perhaps I may quote Clause 1(1)(a) of the Protection of Official Information Bill which stated:
This Act applies to information relating to defence or international relations, the unauthorised disclosure of which would be likely to cause serious injury to the interests of the nation or endanger the safety of the citizens of the United Kingdom and colonies.
Indeed I ought to say that in July 1988 Sir Leon Brittan—Mr. Leon Brittan, as he then was—when Home Secretary, said:
I do not see any justification for what amounts to a tightening up of proposals that were originally put forward in 1979".—[Official Report, Commons, 22/7/88; col. 1430.]
In other words, Mr. Brittan was saying, when Home Secretary, as recently as July 1988 that he did not want to do anything that was less libertarian, if I may put it that way, than was in the 1979 Bill that had an unfortunate fate.
I next turn—and this is possibly the most important of my submissions to the Committee—to reasoned statements that were made by Ministers in regard to this very Bill. This was how Parliament and the public were told about things relating to this Bill. The Home Secretary, Mr. Douglas Hurd, said in February last that,
it will be for the jury to decide whether a disclosure caused or was likely to cause the form of serious harm to the public that the Bill specifies".—[Official Report, Commons, 2/2/89; col. 469.]
In other words, the Home Secretary was saying that these matters relate to "serious" harm and not just to harm.
Mr. John Patten, the Minister at the Home Office, said in December 1988:
The Government do not accept that the criminal law is the right place to balance one Crown servant's perception of the public interest against the specific and serious damage that his disclosure has caused".—[Official Report, Commons, 21/12/88;col. 540.]
The same Minister, at col. 541, said that,
we have heard no coherent argument why people who disclose information knowing that it will do serious harm. to the public interest should not be prosecuted".
Mr. John Wakeham, the Leader of the other place, said in February—I am leaving out needless words
— "The Bill is … aimed at protecting, and protecting effectively, official information whose unauthorised disclosure would cause a serious degree of harm to the public interest". [Official Report, Commons, 13/2/89, col. 71.]
The Home Secretary, Mr. Douglas Hurd, said, and again I am leaving out needless words:
The Government's approach … has been to select from the whole mass of Government information that which needs to be protected, and then to define what is in statute on the basis of whether disclosure of that information could do serious damage to the public".—[Official Report, Commons, 15/2/89; col. 388]
My final quotation is from Mr. Douglas Hurd, the Home Secretary, in an article in the Daily Telegraphonly a few weeks ago, on 18th February 1989:
Under the new Bill the prosecution must in most cases prove to a jury that serious damage has been done in terms defined in the Bill".
I hope that I have within a narrow compass of words dealt with the three reasons why I say that "serious" damage, "serious" injury, and so on, must be brought into this Bill. I repeat, ministerial statements have been made, it is in the 1979 Bill, and Franks recommended that it should be limited in criminal sanctions to those cases where the word "serious" is included. I beg to move.
§ Lord Grimond
I support the extremely able exposition of this amendment which we have just heard from the noble Lord, Lord Mishcon. I have listened to the debates on all these amendments and it seems to me that there are three serious ways in which security is damaged. One of course is from traitors within the Services which this Bill does not deal with; but we are apt to forget that that is one of the main troubles with security and it is strange how that is tolerated. I was personally told by Donald Maclean that he was totally unfit to be in the Foreign Office—a sentiment with which I agree—but he was pressed by the Foreign Office to remain.
Secondly, there is the matter of leaks. As has been said, the main source of leaks—though perhaps not the most important—is from Ministers. They leak all day and every day about everything. That presumably will not be cured by this Bill. Thirdly, there is the damage done to the public services and to the law by the ridiculous pursuit of unimportant breaches. Few cases have done the security and law of this country more harm than the Wright case. The result was that it got far more publicity than it deserved or would have received had it been sensibly treated.
The noble Lord, Lord Mishcon, rightly inundated the Committee with quotations to show that everyone who has seriously discussed this matter has 951 insisted on the word "serious". It is certainly true that if this Chamber passes a Bill whereby every trivial disclosure of information ends up in a criminal prosecution it will make itself an ass, and will do even more damage to security and to the law. It will do no good whatever to those people who work in public service. That was amply demonstrated in the last debate; and it has been amply shown in this debate that if you put in the word "serious" you may limit the damage which otherwise we would be doing in appearing to trivialise criminal matters by applying them to disclosures which may be of minimal importance.
§ Lord Boyd-Carpenter
The noble Lord, Lord Grimond, in his usual agreeable way, indicated the view which he takes rather generally on the Bill. I hope the Committee will allow me to confine my few remarks to the amendment. Here we are concerned with damage to the work of or any part of the security and intelligence services.
I shall not weary the Committee by repeating the arguments; my noble friend Lord Renton spelt them out impressively. We discussed on an earlier amendment that intelligence work can be seriously damaged by the accumulation of large numbers of apparently small and unimportant facts which can be put together by hostile agencies to construct a considerable and clear picture of the intelligence operations. That is exactly what we are concerned with here.
A particular disclosure about the work of the security and intelligence services may not seem, taken by itself, to be particularly important. It may not be; but if there are a number of them—and each have to be considered separately from the point of view of this amendment and the words of the clause—a very damaging picture of the working of the security services will be disclosed, and disclosed to hostile eyes.
Therefore, it seems to me that it is important here, where we are concerned with disclosures which relate to the working of the security and intelligence services, that one should have the firmer, and indeed tougher, prohibition of disclosure. Disclosures can be of themselves unimportant but cumulatively can be extremely important; and that is what this clause is designed to deal with. Therefore, I hope that the Committee will not accept the amendment.
§ 7 p.m.
§ Lord Hutchinson of Lullington
I should like to support the amendment. Perhaps I may deal with the comments made by the noble Lord, Lord Boyd-Carpenter. Those of us who have spent a great deal of time in court in connection with the Official Secrets Act know the situation that the noble Lord has put forward as the jigsaw syndrome; namely, that everything which is totally unimportant can be fitted together, and that if you add unimportance to unimportance to unimportance, you end up with something which is important. One has been through that experience time after time, day after day, in court. Juries laugh and throw it out. The jigsaw 952 syndrome, if I may say so with the greatest respect, does not hold water when one comes to deal with these matters seriously as prosecutions.
Curiously enough, the noble Lord said that small matters can be seriously damaging. So he fell into the very thing that we are putting forward. The whole point of this amendment is to avoid the nonsense of Section 2, which makes damaging anything that is disclosed. The point of using the word "serious" is to distinguish it from the rubbish—the cups of tea and all that. The jury and everybody else should ask when the disclosure is made: is it seriously damaging? The question is not whether it is damaging but whether it is seriously damaging.
I am reluctant to quote to the Government once again what was said 10 years ago in the White Paper. I should like the Minister to tell us why there has been an extraordinary volte face by the Government and why their views then have been thrown aside when talking about defence and international relations. The further amendments introduce the word "seriously" into Clauses 2 and 3. The White Paper stated:The Government believes, however, that the scope of the criminal law in this field must be restricted. The Government's present view is that, despite the arguments rehearsed"—when they previously went into the question of serious or not serious—it would be best to follow the recommendation of the Franks Committee by adopting the test of 'serious injury' in the defence and international relations field. DEFENCE-CONFIDENTIAL would not be extended to information concerned with international relations outside the defence field and it would not be extended to defence information which would be no more than 'prejudicial' to our interests if disclosed. This can only be a matter of balance and judgment".The very point being made in this amendment was set out in far better words than I could ever use.
The ludicrous situation can be seen if one looks at Clause 2(2) dealing with damaging disclosure for the purposes of subsection (1). It states that,a disclosure is damaging if it damages the capability of, or any part of, the armed forces of the Crown to carry out their tasks.One of the tasks of the armed forces of the Crown is to be present at Earls Court every year for the Royal Tournament. To disclose something which would upset the activities at Earls Court would fall within this clause. Unless the word "seriously" is included, the situation becomes completely farcical. Thousands of things can be disclosed which damage the capability of the armed forces to carry out their tasks.
The same applies to international relations in Clause 3(2) which states that disclosure is damaging,if it jeopardises the interests of the United Kingdom abroad or the interests of the United Kingdom".All kinds of things will jeopardise your relations if you disclose something or leak something that will upset your relations with another country. But it must be serious. If it is serious, then it matters.
I should like the Minister to comment on the fact that the word "seriously" is used in Clause 2(2)(b) which states that,a disclosure is damaging if, otherwise than as mentioned in (a) above, it jeopardises the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests".953 The position is exactly the same in Clause 3 which says that disclosure is damaging,if it jeopardises the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests".Why on earth is the word "seriously" used in those two instances and not in the other? What we are asking for in this amendment is straightforward and total common sense. The noble Lord, Lord Harmar-Nicholls, mentioned the word "common sense". Even a lawyer once or twice puts forward something which is commonsensical. I suggest to the noble Lord that this is a perfectly commonsensical amendment which is intended to make the law commonsensical, and intended to make it respected.
§ Lord Trafford
I have a doubt about this amendment in two senses. First, I am not sure that to qualify the word "damage" is helpful to anyone in deciding whether whatever they might say is serious. If what is said will be damaging in any way, then it should not be said. If there is a choice between damage and serious damage, they may make the wrong choice, thinking something was not serious, when it was later held to be serious. In that sense this amendment might not have the effect that its proposers intend.
The second point I should like to make is quite different. Under Clause 9 no prosecution can be brought except with the agreement of the Attorney-General. Therefore, it is not likely that the kind of trivial case, to which the noble Lord, Lord Hutchinson, referred when speaking of the common sense type of situation, is likely to be brought anyway because the procedures under Clause 9 would not allow it. Therefore, is this amendment either necessary, relevant or helpful?
§ Lord Harmar-Nicholls
I think that for 99 per cent. of the time lawyers apply common sense. I am criticising the one per cent. of occasions when they do not, and I am suggesting that this is one such occasion.
The noble Lord, Lord Hutchinson, is fascinating to listen to; but his examples always alert me to look again at what is behind the main point of his argument—in this case the examples of the Tattoo and the Royal Tournament. I do not think that we should take into account whether or not the damage ought to be serious. We all agree with that. Nobody would want anyone to come within the ambit of the criminal law unless it was something serious. It must be serious before they suffer any pain or indignity arising from it. However, at what point does one identify what is serious or what is not serious? I do not think that it is at the point of the words in the statute. I believe that our function, being statute makers, is only to say whether damage has been done. If, according to statute, there has been damage, there are other forces that flow from that which decide whether it is serious or not.
There is the example of the 30 miles per hour or the 40 miles per hour speed limits. We know perfectly well that 99 out of 100 motorists break that law. Perhaps they suffer some internal feeling of indignity when they are breaking the law. The police 954 do not pursue the fact that the 30 miles an hour limit is broken unless people drive at 37, 38 or 39 miles an hour. They use their judgment. In this case the judgment will be about "damage". That is part of the law which we shall eventually put onto the statute book.
We will create unnecessary problems for people who come after us if at this stage we insert into the Bill anything beyond "damage". If something is damaged the matter should be looked at. If someone throws a ball into my garden and breaks a rose bush, that is damage. Whether or not I take action under the law to have someone punished for breaking my rosebush is another matter. One does not. One cannot put into the words of the statute that kind of detail. The provision should specify that damage has been done. It is then a matter for the Attorney-General or for whoever decides whether further steps should be taken and then for the jury at the end of the day to decide how serious or not serious the harm has been.
§ Lord Elwyn-Jones
As a former Attorney-General perhaps I may say that to put the reliance for this matter on the Attorney-General when the whole weight of opinion that has been expressed today and what has been said by Ministers indicates that there ought to be "serious damage" is a curious idea. If that is the conclusion of the Committee, please do not take shelter behind the fact that the Attorney-General, being a sensible man, would bring proceedings only in respect of serious damage. That is the most tortured logic if I may say so.
§ 7.15 p.m.
We have been concerned about whether or not the word "serious" should be inserted into the Bill. The noble Lord, Lord Mishcon, was as usual peculiarly persuasive in suggesting why he thought that the word "serious" would be an improvement. I always have a certain hesitation when the noble Lord, Lord Hutchinson, says, as he did, that this is only a simple and common sense amendment and that it is the kind of amendment which any broadminded person would accept. There is another point of view. The matter is not as simple and as straightforward as the noble Lord puts it.
The Committee would wish to take carefully into account the considerable and in many ways radical step which the Government are proposing to take in introducing a harm test in relation to disclosures about security and intelligence matters. No other government in this country have ever put forward such a proposal. With the exception of members of the security and intelligence services arid notified people—for reasons which we have already discussed—we propose that an unauthorised disclosure of security and intelligence matters by a Crown servant, a government contractor or indeed by anyone else should be a criminal offence only if that disclosure damages or would be likely to damage the work of the security and intelligence services, or was of a class or description which would be likely to cause such damage.
There will be no ministerial certificate to certify that such harm has been caused, as was previously 955 proposed. The prosecution will be required to persuade the jury on the basis of the evidence it can adduce. The jury will be left to decide. The damage will have to be proved to the satisfaction of the jury beyond reasonable doubt. A Crown servant or a government contractor has a defence that he did not know, and had no reasonable cause to believe that his disclosure was likely to have this damaging effect. That is a great change. That is the position which we have reached in this Bill. It is in many ways a brave step and a departure from the past. It was widely welcomed when we proposed it in the White Paper. It is fair to say that it was totally unexpected.
Nobody expected the Government to go this far, but we did. Now the noble Lord, Lord Mishcon, says "Thank you so much for all you have given us and for having gone so far. Will you go a little further?" That is a reasonable view to take but we are considering a series of amendments relating to the harm test in the provision and in later provisions which press us to go further than we have already gone. I hope the Committee will conclude after it has heard the arguments that it would not be right to do so.
Perhaps I may explain how we have gone about our task of providing harm tests in the Bill. In each case we have sought to provide tests specific to the kind of information disclosed—security or intelligence, defence, international relations or foreign confidences. In relation to the disclosure of information relating to security or intelligence, the harm that arises is to the work of the security and intelligence services. We take the view that those who damage that work by an unauthorised disclosure, having good reason to know that that is what they are doing, cause a sufficient degree of harm to this country's interests to require the attention of the criminal law. Damage to the work of the security and intelligence services damages its efforts to protect the security of this country and the safety and well-being of its citizens. That point has been drawn upon both by my noble friends Lord Renton and Lord Boyd-Carpenter. It is not a trivial matter. "Damage" must be real and proven. Inconvenience or embarrassment are not damage.
The noble Lord, Lord Mishcon, quoted many excerpts. The noble Lord, Lord Grimond, said that the noble Lord inundated the Committee with quotations. The noble Lord, Lord Mishcon, made the mistake, which I thought was a curious one for such a person to make, of putting conversational language into legal language. The noble Lord, Lord Hutchinson, did so too. We believe that the harm identified in the Bill is serious. The terms in the Bill, as the Home Secretary has said, define matters which we believe to be serious. These are matters which the whole Bill seeks to address.
§ Lord Mishcon
Perhaps the noble Earl will with his usual courtesy allow me to correct him. What does he really make of a statement made by the Home Secretary in charge of the Bill as recently as 2nd February in Parliament? He said:it will be for the jury to decide whether a disclosure caused or was likely to cause the form of serious harm to the public that the Bill specifies" —[Official Report, Commons, 2/2/89; col. 469.]956 The Home Secretary is saying that it must be left to the jury to decide whether that harm is serious. If we leave the Bill as it stands the direction of the judge must refer to any harm, not necessarily to serious harm. He will say, "If Parliament had meant serious harm, members of the jury, it would have said so". If the amendment is not accepted the words of the Secretary of State to Parliament will not be carried out.
The noble Lord made one speech in which he said that. If he will be good enough to wait a little longer he will see that there is a reason for not accepting that word. The point that I tried to explain to the noble Lord is that in discussion it has been said that all these matters are considered to be serious matters. The noble Lord frowns but this is a fact. We consider that disclosure of information is a serious matter.
The noble Lord is trying to put the word "serious" into the Bill as part of legal language. The result of this is that it would in future be perfectly lawful knowingly to damage the work of the security and intelligence services. That is not a proposition which I believe that Members of the Committee would wish to support. Of course there are different levels of damage which may follow a disclosure. However, they are matters which can be properly reflected in sentencing. The proposition in the amendment is that the work of the security and intelligence services can be damaged without any fear of the criminal law.
I ask Members of the Committee to consider whether it is reasonable to ask a jury to make the distinction between what is damage and what is serious damage to the work of the security and intelligence services. How is the jury, without experience or knowledge of such issues, to make a difficult judgment of that kind? Members of the jury can readily determine whether the work of the services has been damaged, or whether it has not been damaged; but it is quite another matter to ask them to determine whether or not it has been seriously damaged. The degree of seriousness may require the most delicate of judgments.
An assessment of the likelihood of seriousness, which of course any would-be discloser would always have to make, would be as difficult. It would be very difficult for such a person to know, with any confidence, when he stood at risk of the criminal law; and it would be as hard for the jury to come to consistent and equitable decisions. As it stands, the test of harm contained in Clause 1(4) is perfectly clear.
I fear that the result of the amendment would be to encourage disclosures which would damage the security and safety of this country. The fact is that the amendment would allow damage to be done to the work of the security and intelligence services which the proposals under the Bill would not. I ask Members of the Committee to reject the suggestion that any damage should be allowed to be done, whether it was serious damage or any damage at all. I also ask the Committee to reject the suggestion 957 that any damage should be allowed to be done to the work of the security services. That is what the noble Lord's amendment would in fact permit.
§ Lord Mishcon
I hope that I am not dramatising if I say that I noticed when the Minister, with his usual competence, answered the debate on this amendment that he did so in a style which was faltering. I must say that that is most unlike him. However, I can well understand why he faltered.
The Franks Committee was appointed and, as I said, it was viewed with great respect. Not only was the report accepted on all sides of Parliament, but it was also quoted with great deliberation and favour by the Leader of the House. The committee called upon Parliament in its recommendation to ensure that only serious damage, serious injury and serious harm should be made clear in any legislation as being a criminal offence, and I repeat, only serious.
In 1979 the Government, with all the arguments available which have been brought forward today, decided, following Franks, that they would introduce the word "serious" into legislation. Indeed, they did so in the 1979 Bill in Clause 1. There they talked about serious injury. The ministerial statements which I have quoted—I do not intend to quote them for a third time—made perfectly clear what was to be left to the jury. The jury was to be told, and Parliament were informed, that serious injury and serious damage were the matters which they had to consider. Yet, this afternoon, we listened to arguments—I hope I say this with courtesy—which completely negative Franks, which completely negative government thinking in 1979 (without any reason being given for a change of mind) and which completely negative the ministerial clear statements made to Parliament which can only now be misleading statements in view of the Minister's reply in this debate.
I have no alternative, with some sorrow nevertheless, but to ask for the Committee's view to be taken on the matter. I trust that the Committee will prove worthy of itself by the way in which it votes.
Perhaps I may ask the noble Lord one question. I suppose he realises that if the word "serious" were to be introduced, there would then be two levels of test; namely, one where serious damage has been done and one where just damage has been done. If the word was included in the Bill, we would in fact be saying that a person would be guilty only if serious damage was done, but not if damage was done.
§ Lord Mishcon
That is precisely what I am saying. Indeed, I am copying the Government in doing so. They introduce in Clause 3(2)(a) precisely that dilemma—if dilemma it be, and I suggest it is not—and I shall quote from that part of the Bill. It says:it jeopardises the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests".There must now be two standards of jeopardy; that is, one of jeopardy according to the Minister, and one of serious jeopardy. Both matters must be decided by a court of law. I wish I could understand the logic behind the question which was addressed to me.
§ 7.26 p.m.
§ On Question, Whether the said amendment (No. 6) shall be agreed to?
§ Their Lordships divided: Contents 64; Not-Contents, 95.
|DIVISION NO. 3|
|Airedale, L.||McIntosh of Haringey, L.|
|Ardwick, L.||Mackie of Benshie, L.|
|Blackstone, B.||McNair, L. [Teller.]|
|Bonhan-Carter, L.||Mais, L.|
|Brooks of Tremorfa, L.||Mason of Barnsley, L.|
|Callaghan of Cardiff, L.||Mishcon, L.|
|Carmichael of Kelvingrove, L.||Monson, L.|
|Cledwyn of Penrhos, L.||Mulley, L.|
|Cobbold, L.||Ogmore, L.|
|Dacre of Glanton, L.||Phillips, B.|
|David, B.||Ponsonby of Shulbrede, L. [Teller.]|
|Davies of Penrhys, L.|
|Dean of Beswick, L.||Prys-Davies, L.|
|Dormand of Easington, L.||Ritchie of Dundee, L.|
|Elwyn-Jones, L.||Robson of Kiddington, B.|
|Ewart-Biggs, B.||Rochester, L.|
|Falkender, B.||Russell, E.|
|Grey, E.||Seear, B.|
|Grimond, L.||Stewart of Fulham, L.|
|Hampton, L.||Stoddart of Swindon, L.|
|Harris of Greenwich, L.||Taylor of Blackburn, L.|
|Hatch of Lusby, L.||Taylor of Gryfe, L.|
|Hemingford, L.||Tordoff, L.|
|Hutchinson of Lullington, L.||Turner of Camden, B.|
|Jay, L.||Tweeddale, M.|
|Jeger, B.||Underhill, L.|
|Jenkins of Hillhead, L.||Vernon, L.|
|Jenkins of Putney, L.||Whaddon, L.|
|Kilbracken, L.||Williams of Elvel, L.|
|Kirkhill, L.||Winchilsea and Nottingham, E.|
|Longford, E.||Winstanley, L.|
|Lovell-Davis, L.||Zuckerman, L.|
|Aldington, L.||Halsbury, E.|
|Arran, E.||Harmar-Nicholls, L.|
|Ashbourne, L.||Havers, L.|
|Balfour, E.||Henley, L.|
|Beloff, L.||Hertford, M.|
|Belstead, L.||Hives, L.|
|Blake, L.||Holderness, L.|
|Boyd-Carpenter, L.||Home of the Hirsel, L.|
|Brabazon of Tara, L.||Hooper, B.|
|Braye, B.||Jenkin of Roding, L.|
|Brougham and Vaux, L.||Johnston of Rockport, L.|
|Buttenworth, L.||Joseph, L.|
|Caithness, E.||Kenilworth, L.|
|Campbell of Croy, L.||Kimball, L.|
|Carnegy of Lout, B.||Kinloss, Ly.|
|Carnock, L.||Lauderdale, E|
|Clitheroe, L.||Long, V.|
|Craigavon, V.||Lyell, L.|
|Craigmyle, L.||Macleod of Borve, B.|
|Crickhowell, L.||Malmsbury, E.|
|Croft, L.||Margadale, L.|
|Cross, V.||Maude of Stratford-upon-Avon, L.|
|Davidson, V. [Teller.]|
|Denham, L. [Teller.]||Merrivale, L.|
|Dundee, E.||Mersey, V.|
|Dunrossil, V.||Milverton, L.|
|Eden of Winton, L.||Monk Bretton, L.|
|Elliot of Harwood, B.||Mottistone, L.|
|Elton, L.||Munster, E.|
|Ferrers, E.||Murton of Lindisfarne, L.|
|Fraser of Carmyllie, L.||Nelson, E.|
|Goold, L.||Norfolk, D.|
|Greenway, L.||Nugent of Guildford, L.|
|Gridley, L.||Orkney, E.|
|Hacking, L.||Penrhyn, L.|
|Peyton of Yeovil, L.||Strathclyde, L.|
|Reay, L.||Suffield, L.|
|Rees, L.||Thomas of Gwydir, L.|
|Renton, L.||Thurlow, L.|
|Renwick, L.||Trafford, L.|
|Romney, E.||Trefgarne, L.|
|Saltoun of Abernethy, Ly.||Trumpington, B.|
|Sanderson of Bowden, L.||Vaux of Harrowden, L.|
|Sharples, B.||Whitelaw, V.|
|Skelmersdale, L.||Windlesham, L.|
|Southborough, L.||Wise, L.|
|Stodart of Leaston, L.||Wyatt of Weeford, L.|
|Strange, B.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 7.33 p.m.
§ The Earl of Arran
I hope that the Committee will agree that this is a suitable moment at which to break for dinner. I suggest that we do not return to the Committee stage of this Bill before 8.30 p.m. I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to
§ House resumed.