§ 8.40 p.m.
§ House again in Committee on Clause 1.
§ [Amendment No. 7 not moved.]
§ Lord Bonham-Carter moved Amendment No. 8:
Page 2, line 5, at end insert—
("(5) It is a defence for a person charged with an offence under this section to prove that—
§ The noble Lord said: I believe that it will be convenient for the Committee if we consider Amendment No. 23 with Amendment No. 8. I hope that members of the Government will regard this as a friendly amendment. It is designed to make their 977 lives easier, to stop them making fools of themselves all over the world by repeating what is known as the Spycatcher syndrome. On this occasion I expect to have a more responsive answer from the Government Front Bench—from the noble Earl, Lord Ferrers—than we have had hitherto this evening.
§ The amendment is simple and seeks to provide a limited prior publication defence for offences in Clause 1. It recognises, as I hope the noble Earl will accept, that prior publication is not necessarily and in all circumstances a defence. There can be circumstances in which proper publication makes not the slightest difference to the damage done. For example, information published in an obscure learned journal which may be available to the KGB in Moscow may not be readily available to the IRA on the backstreets of Belfast. But on the other hand, if that information were published in a popular paper, it might be available to the IRA and thereby it might be damaging. That is something that the proposers of the amendment wholly support and accept. Nonetheless, where there is a harm test, prior publication is relevant and is recognised by the Government to be relevant in a manner which they accept.
Where there has been prior publication subsequent publication is an offence only where that publication caused harm over and above that caused by the original publication. The Home Secretary accepted that in another place when he said:
Under our proposals, prior publication can be relevant to a prosecution and, for the first time ever"—
those words we have become familiar with—
that fact is recognised by the Bill … The defence will successfully argue that prior publication means that the disclosure …has done no further harm".—[Official Report, Commons, 21/12/1988; col. 464.]
The amendment applies to the absolute defences in Clause I where at present every repetition of published information is a new offence. It is this ridiculous situation which we want to rectify. Let me give the Committee an example. On day one a newspaper reveals, let us say, that the First Secretary at the Soviet Embassy is a British agent. On day two, the First Secretary of the Soviet Embassy is sent back to Russia and consigned to Lubyanka. On day three another British newspaper reports that the First Secretary of the Soviet Embassy has been sent home, is a British agent and has been consigned to Lubyanka. The amendment would not prevent the first disclosure from being liable under the Bill. But no further damage has been committed on day three when the newspaper announced that the First Secretary, whom everyone now knows is a British agent and is now in prison in Lubyanka, has gone to Lubyanka. Therefore it is ridiculous that on day three the newspaper which repeats the information available everywhere should be guilty of an offence, as it is under the Bill, unless it is amended in the manner I am proposing.
§ This ludicrous situation is what has become known as the Spycatchersyndrome, about which the Law Lords said that it is nonsensical to attempt to suppress information which was available worldwide. We are asking the Government on this occasion to accept the Law Lords' advice. That is what I am hoping they will do. I should like to add 978 that the language we have used very carefully in the amendment in order to endear ourselves still more to the Government, derives in part from language used by the Government in the 1979 Bill to reform Section 2. I beg to move.
Lord Campbell of Croy
I should like to comment briefly on this proposed amendment which deals with prior publication—something with which we have all been familiar when dealing with this subject. I note that the proposers of the amendment have put down a similar amendment with naturally adapted wording—Amendment No. 23 to Clause 4. But they are not proposing similar amendments to those parts which deal with defence and crime and special investigation powers respectively. I presume that they have decided it is not appropriate in those cases.
I do not support the amendment because there are two situations that I foresee. The first is that unscrupulous people may be tempted to arrange for the publication of certain information which they want to make into a story in a journal abroad. It may be some obscure foreign newspaper but once it has been published the information can be produced in court with a date and presumably that could be used as a defence. Unscrupulous people will go to great lengths to sell a story which they know will reach the headlines.
My second example concerns a minor report, perhaps of only two or three lines, which may appear in this country in a small weekly newspaper. I know of examples in my own home area in Scotland, such as the Strathspey and Badenoch Herald or the Forres Gazette, not widely read either in this country or abroad. A minor report, containing some delicate information, even though the reporter was not aware of that at the time, would probably not be noticed and may not even be recognised as being on a sensitive security matter unless someone stumbles upon it and blows it up into a national newspaper story. It may be said that that is unlikely, but I contend that I have known incidents of this kind in the past.
It may be said that the kind of newspapers I have described would not carry such information. They may not carry it intentionally, but some of the rural and more remote parts of our country have significance in defence matters. It is possible for some characteristic of an apparently innocent installation to be noticed and reported upon, unintentionally disclosing a matter which is not intended to be made public. With good luck that may not be noticed in a small local newspaper. It may be tucked away somewhere. However, if it could be used as a defence for someone making a major story and turning it into a headline in the national press, great damage could be done. The Strathspey Herald report which I have suggested may occur would not be noticed by most hostile powers, Colonel Gaddafi or the IRA.
It may be said that it does not matter if, by chance, such a report appears in a small obscure newspaper. The question is: where should the line be drawn? In my view, it is not feasible to draw a line and say that a major provincial newspaper matters but a small weekly newspaper covering one county does not. 979 Therefore, prior publication should not be a defence, as proposed by the amendment.
The second paragraph of the amendment attempts to mitigate the situation by indicating that it is not only prior publication but also the possibility of damage being done. It is too late by the time it has become a national newspaper story, unless an unscrupulous person is simply trying to make money or obtain notoriety from something which he knows to be a secret. However, if it is a question of an issue being blown up into a story by a person who is not doing that, he is most unlikely to know of the sensitivity of a subject, particularly in relation to Clause 1 dealing with the security and intelligence services. A matter which may appear to be straightforward may be delicate and, when pieced together with other information, could give away a secret.
I do not commend the amendment and I hope that Members of the Committee will reject it.
§ Lord Ardwick
This is a further example of "Reds under the flat bed", if that is still the kind of machine which is operated in Strathspey. What the noble Lord has described is not the way in which newspapers behave; even today and even at their worst.
The Government have put forward some peculiar thoughts about the matter and I have been rather disappointed. I never had much hope of immediate progress on the previous subject of a public interest defence but I hoped, and still hope, that we should be able to make a little progress on this issue.
One will see in the White Paper the kind of issue which was in the mind of the Government. Under the heading "A Defence of Prior Publication", the Government recall that under their 1979 Bill it would not have been an offence to disclose without authority information in certain categories if the defendant could show that the information had been published before his disclosure. In those days the Government argued that a second disclosure could not be harmful in such circumstances. However, their successor, the present Government, say that that rationale is flawed. They then go hunting for an example and come up with an idea—not the same idea as that of the noble Lord—that a newspaper story may carry little weight without firm evidence of its validity. However, the danger would arise if confirmation of the facts of the disclosure was made by a senior official of the relevant government department. That would be much more damaging if ever it occurred. Therefore, the senior official would have no defence and would be subject to criminal sanctions.
That strikes one as being a most far-fetched and unlikely hypothesis. It is a government clutching at a straw as they suffer from post-Spycatcherneurosis which has left them with an irrational fear of drowning. Of course theoretical damage is always possible as a result of the publication of anything at all, as those concerned with defence know only too well. However, the Government accept that where a harm test is to apply to a defence, someone who republishes information would commit an offence only if additional harm is caused.
980 It is on that point which the noble Lord, Lord Bonham-Carter, and I are happy to come beneficently to the help of the Government. But no test of harm applies to the absolute offences in Clause 1. Give the information again and you create a new offence, even though it is obvious that no further harm can be done. It is such an offence which a journalist may easily commit simply because he discloses information of a class or description likely to be harmful.
In their more liberal moods the Government now accept the idea of a prior publication defence but wish to exclude an absolute defence. So now we are trying to carry out the Government's beneficent intentions with an amendment providing a defence of prior publication where there is no further likelihood of harm from the repetition of information which has previously been published.
Many years ago I sat on the D-Notice Committee under the genial and liberal Admiral Thomson. The principle was that a D-Notice would give you warning that to publish certain information may get you into trouble under the Official Secrets Act. Frankly, the expert journalists from the technical defence publications, especially those dealing with aviation, often revealed that what the defence people wanted to warn us against publishing had already appeared in some journal, usually American. By the time the item had reached the D-Notice Committee it had been neatly filed in one of Molotov's famous filing cabinets in the Kremlin. Therefore the particular D-Notice was never published and somehow the nation survived.
Now another generation of expert journalists 30 years later fear that this Bill could make the system unworkable simply because it strengthens the powers of government officials to censor and further restrict the flow of information. That is an issue which I believe the Government should seriously consider.
§ Lord Monson
I hope that the Government will look favourably upon the amendment because it is clear that national security is protected by the belt and braces of paragraphs (a) and (b) respectively. In order for someone to defend himself effectively not only must he be able to prove that at the time of the alleged offence the information in question had become available to the public but, in addition, there must be no reasonable likelihood that further disclosures will damage the work of the security and intelligence services. In other words, both tests must be fulfilled before the man who spills the beans can effectively defend himself.
I should prefer the word "widely" to be inserted before the word "available". What is meant by the phrase "available to the public"? Does it mean 10, 100 or 500 people? I believe that if the word "widely" had been inserted the amendment would be easier to defend. Alternatively, the phrase "available to a substantial section of the public" might be better.
Nonetheless, if the amendment as it stands is not totally acceptable, I hope that the Government will accept its principle and we can return at a later stage with an amendment acceptable to them.
§ 9 p.m.
§ Lord Belstead
I hope I can persuade Members of the Committee that this amendment is unnecessary inasmuch as it would apply to disclosures by Crown servants and government contractors who are not members of the security and intelligence services whose disclosures are therefore already covered by a harm test. More importantly, I hope I can persuade the Committee also that it would not be consistent with the introduction of the offence in Clause 1(1), nor would it be right to introduce a defence that a disclosure by a member of the services was of information that had already been made public in some form, but that is ground we have already covered.
Let me deal first with the offence in Clause 1(3) which applies to Crown servants or government contractors who are not members of the services or notified people. That offence is subject to a test of harm. It is in Clause 1(4). The test is that the disclosure damaged or was likely to damage the work of, or any part of, the security and intelligence services, or is of a class or description likely to do so. If the prosecution cannot satisfy a jury on that point beyond reasonable doubt, its case falls.
In respect of this offence, where a harm test applies, this amendment simply requires the defendant to prove something which under the Bill as it stands the prosecution has to prove; namely, that the further disclosure was harmful. That makes the defendant's position worse not better. Where there is a test of harm, evidence of previous publication is not excluded from consideration. On the contrary, it is highly relevant but it cannot be conclusive. Members of the Committee moving this amendment appear to agree with that point of view. So there seems to be nothing between the noble Lord, Lord Bonham-Carter, and the Government on this. The amendment is not therefore necessary in respect of the offence in Clause 1(3) of the Bill and rather than the noble Lord making life easier for anyone, I believe that in this respect the amendment makes life worse for the defendant.
Perhaps I may turn to say something about members of the intelligence and security services and notified people. In that respect I take a harder view on behalf of the Government by saying that I do not believe that this defence is either desirable or safe in respect of the offence in Clause 1(1) of the Bill relating to members of the security and intelligence services and notified people. I know that I have been over this ground before and on Amendment No. 2 we have decided that any unauthorised disclosure by a member of the security and intelligence services is harmful. Because it breaches the special trust placed upon him, it must undermine confidence in and within the services and thereby must damage their work.
I feel in this connection that this amendment sends the wrong signal. It says that there are circumstances in which you can breach the trust placed in you without causing harm. We do not believe that that is so. The fact that the information may have been publicly available in some form somewhere in the 982 world does not affect that position; particularly so, in the example given by my noble friend Lord Campbell of Croy where the publication was in a small and obscure newspaper.
Indeed, I go further because what I have just said is familiar and I have said it before. The amendment would create an obvious and damaging loophole. The Bill says, and the Committee has agreed after debate, that any unauthorised disclosure by a member of the services or a notified person must be damaging. But if such a person can find some public reference to the information anywhere in the world, then it appears from the amendment that it may be all right to breach that trust. The amendment suggests that it is certainly all right to treat him or her in the same way as if he were not a member of the services at all, since exactly the same test must be proved for a member of the public (under the offence in Clause 5(2)). That is not right.
As my noble friend Lord Campbell quite rightly pointed out, this amendment makes it possible for a member of the services—and of course I trust that none would ever be tempted to do so—to make an unauthorised disclosure and then to argue that no harm is likely to arise since there had been publication of it elsewhere. In order to rebut such an argument, the prosecution would have to adduce evidence of harm arising from the disclosure. In order to do that, the prosecution would often have to reveal details of the operations of the services. The disclosures it would be obliged to make could be as harmful as the original disclosure. In practice, in many cases no prosecution could be brought. The more damaging the disclosure, the less likely it would be that it would be possible to bring charges.
The result would be that once any unauthorised disclosure of information relating to security or intelligence was made anywhere in the world it would in practice be impossible to prevent the information gaining stature and authenticity if any member of the services decided to repeat the disclosure. His or her trust could be broken at will.
Perhaps at this point I may say that it seems that some of what the noble Lords, Lord Bonham-Carter and Lord Ardwick, said may be something of a misinterpretation of the effect of Clauses 1 and 5. I am advised that if a publisher repeats a story in another publication, he only commits an offence under Clause 5 in relation to disclosure of information relating to security or intelligence if the harm test for security or intelligence matters is met. The test in Clause 5(3) is the same as the test in Clause 1(4). Under the Bill that is for the prosecution to prove. It is not a defence as proposed in the amendment.
Perhaps I may finally try to answer the case as regards Amendment No. 23. Here the situation is different. The effect of Amendment No. 23 is to introduce a harm test for the subsequent disclosure of information following a disclosure in the category of information gathered under statutory warrants. What is different here, as will be seen from reading the amendment, is that it does not actually provide for a defence at all. The effect of Amendment No. 983 23 is that the prosecution would have to prove additional matters to the satisfaction of the jury, and thus, if the information is previously made public in some form anywhere in the world or—and I stress the point—If the prosecution cannot satisfy the jury beyond reasonable doubt that the information has not been published before in some part of the world, the prosecution will have to satisfy the harm test. Therefore, even if the information has not been published before but the prosecution is unable to prove that negative, an unauthorised disclosure about these essential powers is possible.
It is hard indeed to prove a negative. I venture to suggest that it will be almost always impossible to prove this particular negative. It is harder still, in the interests of the nation, if some indiscretion somewhere in the world, out of reach of this Bill and our courts, left the way open to appear to encourage disclosures of this sort of information. We are dealing here with information concerning statutory warrants. It is a serious risk which I am sure the Committee will not wish to take.
In coming to Amendment No. 23 which deals with statutory warrants I have to say that we reach the one area of the Bill where, for very good reasons, we propose no harm test. The reasons are sound. It is an area which is extremely narrow and safeguards which have been put into law by the 1985 Act and the Security Service Bill now going through Parliament are considerable. We propose in this narrow area no extension of the present law but we feel that we cannot possibly agree to a diminution. Any disclosures of this sort of information are absolutely bound to be harmful and they are not made less harmful by repetition,. It is not reasonable to expect the prosecution to prove the absence of a previous publication in this most sensitive area. It would be extremely damaging and objectionable in principle to require the prosecution to prove the damage caused.
I am sorry if I sound a little heated on Amendment No. 23 but it really is absolutely fundamental. Although I have to resist both amendments, Amendment No. 23 would do the greatest damage.
§ Lord Bonham-Carter
We have tried on earlier amendments to persuade the Government to improve the Bill and in this amendment we have endeavoured to prevent the Government from becoming a laughing stock. All we seek to do with this amendment is to apply the arguments which are accepted by the Government where there is a harm test to those offences which are absolute. The Home Secretary accepts the arguments as being legitimate where there is a harm test—that is, repetition is only dangerous where it brings information to people who have not previously seen it. He accepts that repetition which takes place under certain circumstances and brings information to people who previously did not have it falls within the Bill. He also accepts that where information is widely available repetition cannot possibly be damaging.
As I understand the Leader of the House, he is saying that there are circumstances in which the 984 same information which is universally available just by being repeated is damaging. If that is what he is saying I simply do not follow it. That seems to me what the Spycatcher syndrome is about. That is what the Law Lords said was ludicrous. That is what we are saying is ludicrous. By simply saying that certain information that is universally available is damaging by being repeated is to state a proposition which I find absolutely impossible to accept.
§ Lord Belstead
Perhaps the noble Lord will allow me to intervene. I may have been guilty of not getting across the point. On the first amendment the Government are saying that, where there is a test of harm, evidence of previous publication is certainly not excluded from consideration. On the contrary, I said that it might be highly relevant. However, it cannot be conclusive. It is because Amendment No. 8 is seeking to make it conclusive that the Government do not like that amendment.
§ Lord Bonham-Carter
I am grateful for that explanation. We are not saying that it is conclusive but that it is a defence. Of course, previous publication is relevant but not conclusive. I cannot see the arguments which make it relevant but not conclusive, whereas the harm test ceased to make it relevant but not conclusive where it is an absolute offence. This is the centre of the argument which I am offering.
However, we have clearly failed to persuade the Government. I am disappointed because I felt that the amendment was reasonable and helpful. Sadly, therefore, I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 9.15 p.m.
§ Lord Bonham-Carter moved Amendment No. 9:
§ Page 2, line 12, after ("above") insert ("may only be served on a person who is a Crown servant (including a person to whom the provisions of sections 12(1)(f) or (g) below apply) or a government contractor and").
§ The noble Lord said: I move this amendment in the absence of the noble Lord, Lord Mishcon, who cannot be here for reasons which I know he cannot avoid.
§ A weakness of the Official Secrets Act 1911, and particularly of Section 2, was its catch-all quality. It is that aspect which, as I understand it, this Bill sets out to avoid. However, it would appear that Clause 1(6) runs into the danger of repeating that error. Without this amendment there is simply no limit to the category of people whom the Minister can notify and who would then be under an absolute ban on disclosures about security and intelligence, even if those disclosures were totally harmless. The only test that the person's work was connected with security or intelligence is the Minister's opinion. It is his say-so alone which counts.
§ I should like noble Lords to consider a hypothetical situation in which, let us say, a Minister had lunch with six journalists at his club for a briefing about this Bill. This Bill is unquestionably connected with security and intelligence. Let us suppose that in the course of that lunch the Minister went rather 985 too far in his disclosures. I am not saying that it is likely that the present Minister would do so, but might he not, according to the letter of this Bill, notify those journalists and might they not therefore be prevented from using the information which he gave them? That is one point which I think has to be taken on board.
Secondly, let us suppose that someone thinks that he has been wrongly notified. What does he do? To whom does he appeal? The answers given in another place to this question were nothing if not confused. The Minister of State, Mr. Patten, said in connection with this matter:
The matter is not open to judicial review".—[Official Report, Commons 25/1/89; cols. 1127-8 and 1138.]
One column later he said:
The power of notification is without judicial review. I have already said that twice to the Committee".
On the same day he said:
Ministerial decisions would be judicially reviewable. The normal principles of judicial review would apply".
§ Therefore, it is not unreasonable for us to ask for clarification in this matter. The term "any person" who can be notified by the Minister because he has come to an opinion is much too vague and seems to me to be dangerously vague. It could include, for example, the paper-seller outside a building in Curzon Street who happened to recognise Alec Guinness as he went in and out in "The Spy who Came in from the Cold". I suggest that clarification is required. I hope that the noble Lord on the Government Front Bench will see that this amendment provides some measure of clarification and, if it does not, that he will provide some measure of clarification himself. I beg to move.
§ Lord Renton
I am sure that this is not intended to be a wrecking amendment. Indeed the noble Lord has given his sincere reasons for moving it. However, it seems to me that this amendment overlooks the fact that the whole purpose of notification is to bring within the scope of subsection (1) those people who are not members of the intelligence and security services but whom may have helped those services in obtaining valuable information or who may quite by chance have been instrumental in providing it. To say that it therefore shall not apply to such people defeats the purpose of the notification procedure. I should have thought that this amendment, harmless though it would seem to be, is something that we should not accept.
It may be helpful to the Committee if I set out briefly how Clause 1(6) works. A Minister may only notify a person that he is subject to the same offence in Clause 1(1) as a member of the security and intelligence services if he is satisfied that two particulars are fulfilled.
The first is that the work undertaken by the person is or includes work connected with the security and intelligence services. The person must therefore have some official standing in relation to the services. Without that his work cannot properly be held to be connected to the services. If the Minister is satisfied that the person's work is indeed connected with the security and intelligence services, he must then 986 address a second criterion. He must satisfy himself that the nature of the work undertaken by the person is of such a kind that the interests of national security require that he should be subject to the offence in subsection (1) of this clause. I emphasise that the Minister has to be satisfied that the interests of national security require notification. It is not enough that he believes it to be desirable or convenient in the interests of national security. The interests of national security must require that that is so. Nor is it enough that the connection may put someone in the way of information from the security services if the work is not such as to require notification in the interests of national security. The second criterion disposes of many of the other more extravagant examples.
I emphasise that both the criteria in Clause 1(6) must be satisfied before someone is notified. The noble Lord, Lord Bonham-Carter, asked what will happen if a person is wrongly notified. I can confirm that the Minister's decision would be open to judicial review. I should like to assure the Committee that there is no power to notify anyone retrospectively. The liability cannot arise until the notice of notification has been served by the Minister in writing on the person who is to be notified. Once notification is revoked—under Clause 1(7), which we shall discuss shortly—liability continues for the information relating to security or intelligence which was in a person's possession during the period of notification but not for any information which he may subsequently obtain. If he makes any unauthorised disclosure of that subsequent information, he is subject to the damage test in Clause 1(3).
The effect of notification is to put a person in the same position as a member of the security and intelligence services, and that is its objective. The question on which the amendment focuses is to whom the power can apply. That is a question effectively of who stands in an official relationship to the services, who has a comparable position of trust and who ought therefore to share the same liability. My honourable friend the Minister of State gave the Committee on the Bill in another place an indication of the types of people whom it is intended to notify. I think the Committee would find it helpful if I were to explain who those were, although the Committee will understand that I cannot reveal operational information.
We propose to notify some carefully selected and mainly senior officials and members of the armed forces working in a few government departments because they are involved in assessing and deploying intelligence information of the greatest sensitivity and in assisting Ministers in the exercise of their responsibilities for the security and intelligence services. We propose also to notify some, mainly Crown servants, who work on providing the services with regular professional support for their operations and activities. We shall also notify those members of the armed forces who are undertaking technical communications work alongside the services in various parts of the world.
We also propose to notify those with particular responsibilities or public duties in respect of the services, including Ministers. This includes a small 987 number of people who hold public office which involves a detailed knowledge of the services. Such people have a close knowledge of the work of the services and they stand in an eminent position of trust. It is right therefore that as a matter of consistency they should share the liability of the services. They are neither Crown servants nor government contractors. They include, for instance, the chairman and members of the Security Commission.
It will be clear, I hope, from what I have said that notification will not apply to the vast majority of people who may from time to time be provided with information by the security and intelligence services, or who may be aware of particular aspects of the work of the services, or who from time to time give support and assistance to them. Any unauthorised disclosure by such people will for the first time be subject to a test of harm.
I hope that this explanation gives the clearest possible exposition of the way in which the power will be used without revealing operational secrets by identifying the particular posts or the particular individuals who would be involved. I also hope that Members of the Committee will find it reassuring and will see that, taken together with the statutory restrictions which I described, the provision is not nearly so wide as some people imagine.
However, the effect of the amendment would be to go further and confine the use of the power just to Crown servants or government contractors. As I have tried to explain, we believe that the criteria are properly met in respect of some office holders—such as the Security Commission—who are not Crown servants. I recognise that one way around the problem would be to invite Parliament to approve the prescription of such eminent persons so that, for the purposes of the Bill, they are Crown servants. I am not sure, whether, if the Government had proposed this, it would not be seen as what one might describe as a Houdini manoeuvre; that is, a way of getting out of binds which the legislation should not have imposed in the first place. Nor am I sure whether it is right, or necessarily welcome, that those who hold such office should be formally prescribed as Crown servants.
However, there is more to this issue than that. The purpose of notification is to identify personally and directly those who share the same trust as a member of the services. We are making provision in primary legislation which needs to take reasonable account of possible future eventualities. We cannot say today what the situation may be in the future. There may come a time when a Minister quite properly decides that someone who is not a Crown servant or government contractor must be notified because of his or her connection with the services and because the interests of national security require 988 it. The requirement can be crystal clear: there would be no doubt about it. But, under the amendment proposed, the Minister could do nothing about the matter—or, at least, he could do nothing other than introduce amending primary legislation, or lay a prescription order.
The effect of such an order would be to identify publicly all those, other than Crown servants or government contractors, who meet the criteria for notification. Such people may be just the sort of people who cannot be identified publicly. They may indeed be under greater threat and risk if they were to be identified publicly. The result would be that national security would require his notification because that is part of the criteria in Clause 1(6), but national security would prevent his notification. That is a curious position to be in. I do not believe that that is the effect that Members of the Committee wish to achieve, or that it would be right to achieve it. Nevertheless, that is what the amendment would lead to.
Therefore, for the reasons I have given, I do not think it is necessary for the Committee to introduce such an anomaly in order to ensure that in today's circumstances the power is operated as I think Members of the Committee would wish. On the basis of the assurances which I have given, I hope that Members of the Committee will agree that the Bill is best left as it is.
§ Lord Bonham-Carter
I am not sure whether I wholly understood, or followed, the last part of the noble Earl's explanation regarding the anomaly. However, tomorrow I shall read in Hansard what he said to see whether in the light of day I can understand what the anomaly is, and why it is so undesirable. I must confess however that I am reassured to some extent by what he said in three respects. First, I understand that someone who believes that he has been wrongly notified will be able to apply for judicial review. To have that fact on record is indeed a comfort, and I am glad to have it confirmed.
Secondly, I understand that notification cannot be made retrospectively. I think that that is an important point. I had not understood that fully—although, perhaps I should have—and I am glad to have had it explained to me. Thirdly, the noble Earl has set forth the categories of people who may be notified. We now also have that on record and it is indeed a comfort. It means that the journalist and the doorman—the two examples which I used—could not or would not, as I understand it, be notified unless under very peculiar circumstances. In the light of those explanations, I am prepared to withdraw the amendment.
§ Amendment, by leave, withdrawn.989
§ 9.30 p.m.
§ Lord Elwyn-Jones moved Amendment No. 10:
Page 2, line 19, leave out subsection (7) and insert—
("(7) A notification for the purpose of subsection (1) above—
and the Minister shall serve such a notice as soon as, in his opinion, the work undertaken by that person ceases to be such as is mentioned in subsection (6) above.").
The noble and learned Lord said: Clause 1(7) provides:
A notification for the purposes of subsection (1) above shall be in force until revoked by a further notice in writing served by the Minister on the person concerned; and the Minister shall serve such a further notice as soon as, in his opinion, the work undertaken by that person ceases to be such as is mentioned in subsection (6) above".
There is an indefiniteness about the period when the notification for the purpose of subsection (1) is to continue in force. This amendment proposes that:
A notification for the purpose of subsection (I) above—
"and the Minister shall serve such a notice as soon as, in his opinion, the work undertaken by that person ceases to be such as is mentioned in subsection (6) above".
§ That is a helpful suggestion and it may be that at last we shall achieve the acceptance of an amendment from the Government Front Benches. As I have indicated, it limits the length of time of a notification that a person is subject to an absolute duty of confidentiality. Under paragraph (a) the notification must be renewed every four years. Paragraph (b) repeats the present provisions of Clause 1(7) of the Bill. The effect of the amendment is to prevent the Minister issuing a notification and, through his failure to review it, leaving it in force indefinitely and even after the person ceases to be employed in sensitive work. I submit that these are reasonable and helpful suggestions. I beg to move.
§ Lord Renton
It is harmless and quite unnecessary. It would merely increase the administrative effort that will lie behind the administration of this notification procedure. The last few words of subsection (1) say,while the notification is or was in force".The noble and learned Lord seeks to leave out subsection (7). In that subsection there are the words,A notification …hall be in force until revoked by a further notice.…".990 So there is a great deal of flexibility in the Bill as it stands. All the amendment does is to insist that every four years there shall be carried out a procedure either for perpetuating the notice or for revoking it automatically. I should have thought that this was introducing unnecessary bureaucracy.
§ Lord Mishcon
We have reached a situation where, first, all amendments, unless they be moved from the Government Benches, are unreasonable and therefore should not be allowed. The second stage is that, while they are quite reasonable, it is nevertheless appropriate not to agree to them. The third stage has now been reached; they are perfectly reasonable but they are unnecessary. I wonder what further classification will be used from the Benches opposite in order to ensure that not one word of the Bill is altered and that not all the combined thinking of members of the Opposition in your Lordships' House will ever penetrate through the Government's very substantial armour. Somebody who receives notification is, we recognise, under a very great duty. If he breaks the confidentiality which is very properly enforced, as we all admit, by this Bill, he will commit a criminal offence. It is therefore necessary to see that there is justice. Sometimes bureaucracy or administration assists in justice and therefore justifies its existence.
We are not asking for a period of time which is one year afterwards or two years afterwards. If in answer to the amendment the Minister says, "Four years is not reasonable, make it six", then one would realise that the situation is at least being dealt with. It is not just negligence on the part of a government department that somebody has not said, "Well, we now realise that you are no longer under these very strenuous duties. You received a notification; we are now withdrawing it". There is a duty upon the Government as well to stop people from being under a criminal sanction.
In these circumstances, I await the Minister's reply with interest and hope that he will not adopt the formula of the noble Lord, Lord Renton, that while it is all very reasonable, it is rather unnecessary. I hope therefore that the amendment will be agreed to.
§ Lord Renton
Before the noble Lord sits down, I wonder whether he would consider that if one inserts "four years", that is likely to become the norm, and in practice it will destroy the flexibility already in the clause. There may be many cases in which the notification could be revoked well before the four years, but people might say, "Well, it has to be reconsidered anyway in four years. Let it stand for four years and then we shall see". Is it not better to have the flexibility in the Bill?
§ Lord Mishcon
The noble Lord, Lord Renton, said that he was making his intervention before I sat down. I could not have sat down with any contentment at all, listening to what the noble Lord said, therefore I am still standing. If the noble Lord will be good enough to read the amendment he will 991 see that there is the possibility of every flexibility, because it states that the notification will only have to be revoked or renewed at the end of four years if before the end of that period the Minister has not issued a further notice. In other words, quite obviously he can revoke it before the end of four years, if he so wishes.
The point is that he has to examine the situation or a civil servant has to examine it at least every four years to see whether the heavy sanction is still applicable. But naturally there is nothing to stop anyone from revoking it before the end of the four years. Obviously the flexibility exists.
I hate to intervene in the dialogue going on between the noble Lord, Lord Mishcon, and my noble friend Lord Renton. I do so because I wish to address the minds of Members of the Committee to the Government view of the amendment. Just before dinner, the noble Lord, Lord Mishcon, told me that he did not understand the logic of the question which I had asked him. I can tell him that I understand the logic of the amendment which was moved by the noble and learned Lord, Lord Elwyn-Jones, who described it as reasonable and helpful. I can quite see the reason why he did so describe it. I do not think the noble Lord, Lord Mishcon, should fear that it is so difficult to get through what he described as the Government's thick skin.
I understand the concerns of the Committee that a person should not be notified and then forgotten. I can assure the Committee that there is no danger of that happening, if for no other reason than because there will be a statutory requirement to revoke notification in Clause 1(7) of the Bill. I agree with my noble friend Lord Renton that there is a danger that this amendment could add a bureaucratic procedure with little particular purpose.
Clause 1(7) places a duty on the Minister to revoke a notification as soon as the work of the notified person ceases to meet the criteria in Clause 1(6). So, as soon as the person's work ceases to be connected with the security and intelligence services, or as soon as the nature of that work ceases to be such that the interests of national security require that the person should be notified, the Minister is under a clear and unavoidable statutory obligation to revoke the notification.
Of course, in practice a person's work does not cease to be connected with the services, nor does its nature change, unless there is some decision to vary the responsibilities of that person or he moves to other work or he retires. All of these are predictable and conscious changes and the administrative machinery will build into the plans for such changes a consideration by the Minister of the need for notification and, if the Minister concludes that the criteria are no longer met, the revocation of that notification. There is no need to wait four years for this to have effect; it must happen as soon as the person's job no longer meets the criteria.
992 The procedures in the amendment would therefore only have any practical effect where, after four years, the person was still carrying out work which required continued notification. That may well be so in some cases. But, under the Bill, it could only be so because the conditions for revocation had not been met. The effect would therefore be renotification every four years. That would be another administrative process and would involve further pieces of paper, such as my noble friend Lord Renton feared.
The danger would be that this renotification process could, and I say only could, make for less vigilance and rigour in considering those first notifications where the person's work must properly be considered with the utmost care. I can assure the Committee that under the Bill, notification should not and cannot last a day longer than necessary.
I realise the reasonableness of the view of the noble and learned Lord, Lord Elwyn-Jones, and for the reasons which I explained I do not consider the amendment is necessary to achieve the effect which he desires. I am also concerned about the degree of bureaucracy it would involve. However, I understand the concern of the noble and learned Lord, and, if it will help the Committee, I shall certainly give the matter further consideration before the next stage.
§ Lord Elwyn-Jones
This is a glorious and memorable moment. I am not sure this is not the first time that we have heard those encouraging words today. It is better to hear them later than never. I am delighted to accept the undertaking of the noble Earl and in the circumstances, I shall sit down.
Before the noble and learned Lord withdraws the amendment, I should say that I was merely trying to point out to him, and to his noble friend who sits behind him, that the Government's skin is not quite as thick as it is sometimes made out to be.
§ Lord Elwyn-Jones
I shall not go into an adjectival description of the Government's skin which seems to me pretty hidebound. However, in the circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Mishcon moved Amendment No. 11:
§ Page 2, line 24, after ("the") insert ("lawful").
§ The noble Lord said: I wonder whether we have now reached the stage when the words "favourable consideration" could be used to enhance the Government's lately expressed goodwill. I tried to make my language a little more poetic, and rather than describing the Government's attitude as thick skinned I talked about their impregnable armour. I am optimistic that in relation to this amendment I shall receive "favourable consideration" even if the amendment is not accepted, if that is not expressing too much optimism.
§ I should have thought that nobody is trying to protect unlawful activity. I say that particularly in view of the fact that we recently considered a 993 Security Service Bill in which MI5 was made a statutory institution for the first time. What were on many occasions the illegal activities of an unrecognised organisation were put into the form of law so that many activities are now perfectly lawful within the precincts of MI5, in the sense that they have been given a procedure for entering premises, for example, after the issue of a warrant.
§ Here we are considering a situation in which only unauthorised disclosures about the lawful activities of the security and intelligence services would be offences. That is the position we are trying to create under this amendment. As the Bill stands—and I am sure that the Government and all Members of the Committee will recognise it—it would be an offence for someone to reveal evidence of illegal actions by the services.
§ A very dramatic example was given in the other place. Let us take it for granted that, completely contrary to the spirit of the Security Service Bill, somebody in the intelligence service taps a telephone without a warrant with the sole object of promoting the interests of a political party. That fact is notified to a Member of Parliament whose telephone has been illegally tapped. However, a member of the security services would commit an offence if he so informed the Member of Parliament. That example was given to the Minister, who had to concede that as the Bill is now worded, in such a case a criminal offence would have been committed.
§ Before I sit down I shall repeat that that information is passed on by a member of the security service who knows that a colleague of his has illegally, without a warrant, tapped the telephone of a Member of Parliament for the sole purpose of obtaining some form of favoured treatment for a political party. The information concerns only a political intent and has nothing to do with intelligence or the security of the country. If any civil servant told that Member of Parliament, as the Bill now stands he would be committing a criminal offence. That is why we ask for the word "lawful" to be inserted here so that that position is rectified. I beg to move.
One of the dangers of saying that one will consider something, which is a fairly modest description, gives the noble Lord, Lord Mishcon, the taste of honey. He hoped that this amendment would also be given favourable consideration, which was one rung up the ladder.
I recognise the intention of the amendment and, as usual, the noble Lord has put the case very persuasively, but I do not accept the implications of his amendment. It would be wrong for me from this Dispatch Box to give counsel to those who make allegations about the activities of the security and intelligence services, and I know that noble Lords would not expect me to do so. But I would not need to follow the argument down that path in order to show noble Lords that this sort of qualification to the protection necessarily provided by this clause would make the provision unworkable. It would be unworkable because it would require the prosecution to make full and detailed disclosures of the operations of the security and intelligence services in order to show that they were in fact lawful.
994 I think that most noble Lords agree that the well-being of this country and the safety of its citizens demand that information relating to the work of the security and intelligence services must be protected. This amendment undermines that protection by allowing anyone who makes an unauthorised disclosure to argue that he has not committed an offence because his disclosure related in some way to unlawful behaviour. If the amendment were accepted, it would not matter how much damage was caused by the disclosure; if the prosecution could not prove that the information in question related to lawful activities, the person concerned would not have committed an offence. The unlawful behaviour need not be a criminal offence. The damage caused by the disclosure could be untold, but the protection of the criminal law would be lost. The amendment would be an invitation to make revelations about the work of the services under the guise of disclosing some form of unlawful activity.
I believe that the amendment would make the clause unworkable. The prosecution would be required in every case to show that the disclosure related to lawful activities. To prove that the prosecution might well need to reveal highly sensitive operational secrets. The practical effect would be that, in order to avoid doing further damage, very often no prosecution could be brought at all.
I fear that this is an example of how a worthy sounding amendment, carefully delivered, would in fact wreck that part of the Bill
§ Lord Monson
Before the Minister sits down, will he give a couple of examples of the soft of unlawful behaviour by the security services that would not constitute a criminal offence?
I do not think that it is particularly helpful to give examples. I was trying to explain to noble Lords that, if one has to prove in law whether an action was lawful or unlawful, it means that one has to prove that the work done was in fact lawful. One therefore goes to a great deal of trouble to produce a whole lot of evidence—evidence which should not come to the court in the first place—showing precisely why the action was lawful. That is done in order to show whether or not the work was lawful or unlawful. That is why one discloses a whole lot of information about the security services which should not be disclosed.
§ Lord Mishcon
I am trying to meet absolutely fairly the argument put by the Minister. I am trying to see what onus there would be on the prosecution which would be an unfair onus. Let us assume that there has been a 'phone tapping. Either a warrant has been issued or it has not. A witness attends on behalf of the prosecution to say that a warrant was in fact granted—full stop. He does not have to say why it was granted. He does not have to mention any names. The warrant was granted by the Minister. That immediately makes it lawful. There are lawful activities of the intelligence services set down in the Bill that was recently before this Chamber.
995 With complete sincerity I wonder whether there is a greater balance in favour of justice and the proper administration of the intelligence and security services where there might be an occasional difficulty (although I cannot think of one for the moment) as against the blatant example mentioned in the other place and which I gave to the Committee where the Minister had to admit that a criminal offence would be committed. In my view the greater injustice is done by the omission of the word "lawful" rather than by leaving matters as they are so that a crime is committed even when unlawful activities are divulged.
I cannot add anything. I merely tell the Minister that we are doing extraordinary things under this Bill. It is all very well to talk in terms of getting rid of the wide aspect of Section 2. So many people have described it as the ill fated, ill remembered, or ill wanted Section 2. We are now introducing into our criminal law and in so-called protection of our intelligence and security services the addition of offences which I find truly remarkable; namely, that unlawful activities divulged can lead someone to commit an offence.
§ Lord Renton
I wonder whether I can set the noble Lord's mind at rest. I shall try to do so. Even if the prosecution does not have to prove that an activity was lawful, if it transpired either in the course of considering the case for trial or after the trial began that the so-called breach of security arose out of an unlawful activity, is it not unthinkable that the prosecution could proceed? Further, if the case came somehow before the High Court for judicial review and in the course of its investigation it was found that the problem arose from an unlawful activity, that also would be an end of the case.
So, although we are not putting upon the prosecution the burden—the formal obligation, as the noble Lord would have it—of proving that the activity was lawful, as soon as it became clear that it was unlawful surely that would be an end of the matter.
§ Lord Mishcon
The noble Lord directs at me his question and his very helpful comments, as I am sure he believes them to be. It is not my interpretation of the law; it is the Minister's interpretation. In another place Mr. Patten, the Minister at the Home Office—and I shall give the reference with the greatest of pleasure to the noble Lord if he desires it—was faced with the question of whether or not, in the example given, the member of the security service concerned would have committed a criminal offence, and his answer was, yes, he would have.
The answer to the noble Lord is that if we leave the Bill as it is, nobody would have a chance of examining that situation. In my humble opinion the judge would have to rule that it does not matter whether or not the security service had in fact acted unlawfully. He could not stop the case because of that. He could not allow evidence to be called in regard to it or insist upon evidence because we are making it an absolute offence, as the Minister conceded in the other place, even if the act of the 996 intelligence service was unlawful. That obviously is the complete answer—if the noble Lord will forgive my saying so—to the intervention that he made.
§ Lord Hemingford
If noble Lords do not like the amendment perhaps they can suggest a better remedy for the problem that the noble Lord, Lord Mishcon, has raised.
§ 10 p.m
The noble Lord, Lord Mishcon, fairly draws to the attention of the Committee a matter about which he is concerned. He says that we are entering a new part of the law which frightens him. One must always bear in mind that the area of legal infringement has, as a result of this Bill, been enormously reduced. We are therefore left with only a small part of it where there will now be legal infringement by breaking the law.
I draw the attention of the Committee to what the Bill states. It states:in this section 'security or intelligence' means the work of, or in support of, the security and intelligence services".If the word of the noble Lord's amendment is inserted, it would read,In this section 'security or intelligence' means the lawful work of, or in support of, the security and intelligence services".That infers that there are two types of work: lawful work and unlawful work. That means that in order to prove whether the crime undertaken is in fact a crime, the first thing that the prosecution has to prove is that it was lawful. In doing that the prosecution has to go through all the procedures explaining why what has been done is lawful. In order to do that it will have to explain what has been done. That would release a very great deal of information which might be undesirable.
The insertion of the word is in order to try to cover a relatively small although important point that the noble Lord, Lord Mishcon, raises. He gave the example of telephone tapping. If a member of the services were to act in the way that the noble Lord, Lord Mishcon, adumbrated then the member of the services who discovered it should report it to his superiors immediately. They would take the necessary action including involving the police so that any criminal charges could be brought. There is no need for this amendment in order to ensure that that situation is properly provided for
Everyone in this country, whatever he is doing, is subject to the law. If he breaks the law that is a criminal offence. If the proposition that the noble Lord suggests were to be accepted there is a perfectly good remedy in the law as it stands because he is committing a criminal offence. However, to insert the word of the amendment into the Bill would open up a whole host of problems. The prosecution would have to prove that the work which was done was lawful.
I hope that the noble Lord will realise the complications which his modest amendment, as it appears, would produce.
§ Lord Mishcon
To say that I am happy would be a wrong way to describe anyone's attitude at this hour of the night. I am increasingly unhappy with the reply of the Minister. However, this is not the time to continue this argument. Therefore, hoping that I can raise the matter to more advantage at an earlier hour at another stage of the Bill, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Clause 2 [Defence]:
§ [Amendments Nos. 12 to 14 not moved.]
§ Clause 2 agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.
§ House adjourned at five minutes past ten o'clock.