§ 3.19 p.m.
The Minister of State, Home Office (Earl Ferrers)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 3 [International relations]:
§ [Amendment No. 15 not moved.]
§ Lord Hutchinson of Lullington moved Amendment No. 16:
§ Page 3, line 21, leave out from ("relations") to end of line 24.
§ The noble Lord said: In moving this amendment, I shall also speak to Amendments Nos. 18 and 20. Amendment No. 16 relates to Clause 3 which deals with international relations. It effectively seeks to leave out Clause 3(1)(b). Amendment No. 18 seeks to leave out Clause 3(3) and Amendment No. 20 seeks to leave out Clause 3(6). The purpose of these amendments is to seek to remove from the clause mere breaches of confidence. Many noble Lords will know far more about the subject of international relations than I do and I am sure will want to examine this clause with the greatest care. Breaches of confidence are here made criminal offences. In these amendments we suggest that such breaches should be dealt with under disciplinary codes within the departments concerned.
It might help the Committee to start by looking at the definition of international relations given in subsection (5) on page 4 of the Bill. Noble Lords will appreciate the breadth of what we are dealing with. The subsection states:
In this section "international relations" means the relations between States, between international organisations or between one or more States and one or more such organisations and includes any matter relating to a State other than the United Kingdom or to an international organisation which is capable of affecting the relations of the United Kingdom with another State or with an international organisation.
Noble Lords will see that this clause dealing with international relations broadens the scope of the Bill enormously. It refers to any matter relating to a foreign state or any international organisation and which is capable of affecting relations between this country and any foreign state or international organisation.
§ Under Clause 3(1) and 3(2), a civil servant or, perhaps more importantly, someone who has been a civil servant and may be working for an international organisation, a member of the Foreign Office working in Brussels or anywhere abroad, any member of the Forces, or any Government contractor employed in the provision of goods or services to the Crown, who discloses any confidential document or piece of information commits a criminal offence if the disclosure is likely to jeopardise United Kingdom interests or seriously obstruct the promotion of such interests. Clearly, to disclose even totally innocuous matter may give rise to loss of confidence between this country and another country simply as a result of the breach and the Government may be looked upon as being leaky. We are talking about documents and information that 1020 are confidential in international organisations as well as in foreign countries.
§ Matters become even worse and even broader if we consider Clause 3(3) which is the subject matter of Amendment No. 18. The mere fact that the document is marked "Confidential" may itself be sufficient to prove the case if proceedings are brought, completely irrespective of the contents of the document. The Committee will appreciate that thousands of documents that pass between governments and international organisations are automatically stamped "Confidential". Some noble Lords will know that much better than I do. I suggest that most documents of that kind are so marked. More and more decisions taken in Brussels affect this country. If this clause remains as it is, I suggest that almost every document will be so stamped. This clause covers all international organisations, all foreign states and matters having no connection with security or the safety of the state.
§ In Clause 3(6), which is dealt with in Amendment No. 20 and is on page 4 of the Bill, any information is by definition confidential while the circumstances in which it was obtained make it reasonable for the state or organisation to expect it to be so regarded. Let us suppose that corruption, dishonesty or double-dealing is exposed; that grave harm was to come from the disclosure of information marked "Confidential", such as the cover up of a nuclear or oil spillage, poisoned food, pollution or a hundred kinds of consumer affairs; or, at the lower level, that there were plans to get rid of rules regarding rabies, setting the line of the TGV train through Kent, or the advent of heavy lorries in this country. In all those examples, a document marked "Confidential" would fall within the scope of the clause. Disclosure of such matters would obviously cause acute embarrassment to the Government. It would no doubt jeopardise United Kingdom interests, as surely they would be if such matters were disclosed.
§ What interests are referred to in this clause? Are they the interests of the state or of the Government? For which purpose will documents be marked "Confidential"? Under the recommendations of the Franks Committee, material marked "Confidential" was designated as being merely prejudicial. Clauses 5 and 6 deal with the ordinary person, particularly the journalist. Those matters that appear in Clause 3 relate to protected information—a point to which I have drawn the Committee's attention—but, under Clauses 5 and 6, journalists and other such people will commit offences if they knowingly disclose that kind of information. How on earth will they be able to know whether the state or organisation would reasonably expect the information to be treated as confidential when it is handed to them?
§ If this clause stands in its present form I suggest that there will be no document in the Foreign Office or any department dealing with other countries that is not marked confidential. The clause is far too widely drawn and as drafted it is dangerous. These amendments simply seek to take information which is merely a breach of confidence out of the Bill, out of crime and out of criminal offences and make it what I suggest to the Committee it ought to be; namely, a matter of discipline. I beg to move.1021
§ 3.30 p.m.
§ Lord Renton
I have some sympathy with the arguments put forward by the noble Lord, Lord Hutchinson, on the first two amendments to which he referred, although I cannot support him in his reasons for proposing the third amendment, Amendment No. 20. Clause 3(1)(a) is very broadly drawn indeed:an offence [is committed] if without lawful authority he makes a damaging disclosure of—(a) any information, document or other article relating to international relations".One could hardly have the matter more broadly expressed than in those few words. It seems to me that if subsection (1)(a) is taken together with subsection (2)—which the noble Lord does not propose to have left out—and with subsection (6), one does not need subsection (1)(b) because the greater includes the less.
I believe that it would strengthen the Bill if subsection (1)(b) were omitted. It would certainly save a great deal of rather subtle argument in court about the exact meaning and effect of subsection (1)(b). If that subsection were omitted, then subsection (3) would automatically fall because it refers only to subsection (1)(b). So much for the first two amendments. For the reasons that I have given, and apart from any reasons put forward by the noble Lord, Lord Hutchinson, I think that the Government should explain why subsection (1)(b) is necessary.
I should like now to turn to Amendment No. 20, which proposes that subsection (6) should be left out. That is surely an entirely separate point. Indeed, it is quite conceivable that Amendments Nos. 16 and 18 will be accepted while Amendment No. 20 is not agreed to. I believe that there is a great deal to be said for subsection (6). In my opinion it explains rather more clearly the effect of subsection (1)(a) than does subsection (1)(b). Therefore I feel that subsection (6) should remain in the clause.
§ Lord Belstead
The amendments proposed by the noble Lord, Lord Hutchinson, would completely remove from the Bill the category "protecting material received in confidence from another state or international organisation". First of all, although in moving his amendment the noble Lord referred to these matters as mere breaches of confidences, the Government feel very deeply that we need to protect foreign confidences in the way proposed by Clause 3 in order to provide the protection of our criminal law in the interests not of other countries but of this country. I like to think that the harm test makes that clear.
All this information—I am referring to foreign confidences because that is what the first amendment would sweep away—is already protected under existing official secrets law. We believe that it should continue to receive protection but, unlike the present law (and this is a liberalisation), in this Bill the protection is only when the unauthorised disclosure of foreign confidences would jeopardise or be likely to jeopardise our interests abroad or otherwise when it would satisfy the related tests of harm set out in Clause 3(2) of the Bill.
1022 Effective international relations depend on the exchange of information in confidence. If other states or international organisations believe that we cannot protect their confidences, they will not provide them and, as a result, our interests abroad and our ability to protect those interests may be endangered.
At this point I must address myself to the issue raised by my noble friend Lord Renton. I understood him to say that it is all right to have in the Bill subsection (1)(a) dealing with international relations but he asked whether subsection (1)(b) was really needed at all. The difficulty about leaving out subsection (1)(b) is quite fundamental. The problem would be that the category of information called "foreign confidences" is materially different from that category which relates to international relations in general. The category of information relating to international relations by itself does not adequately protect our interests abroad because it only covers information relating to relations between states and international organisations. In addition we must be able to protect other confidences when our interests require it. That is the Government's thesis and what subsection (1)(b) makes possible.
I should like to offer another example. It may be that another state provides us with information in confidence about its proposals on some quite domestic economic issue. Though the information does not relate to international relations it may be the subject of very great political controversy in the state which has provided it. Our failure to protect such information would make that state very reluctant to trust us further and might cause it to change its mind and stance in relation to matters affecting our interests abroad. For example, it might induce that state to decline to support us soon afterwards in securing some quite beneficial treaty. It is not the nature of the information itself which puts in danger our interests abroad; it is the breach of confidence which does so. We must provide protection for such matters. That leads on to the need for both subsection (3)(a) as well as subsection (3)(b), which would be the target of the noble Lord's second amendment, Amendment No. 18.
That brings me to the final amendment of the noble Lord, Lord Hutchinson, Amendment No. 20. The noble Lord wished to do the job properly by sweeping away subsection (6). I was most grateful to my noble friend Lord Renton for saying that it was most necessary to have subsection (6) in the Bill. I add my voice to his. I believe that we shall be in trouble if the definition of what is confidential is not in the Bill. Subsection (6) explains when information is confidential and makes the important proviso, which I should have thought the noble Lord, Lord Hutchinson, would have welcomed, that such information is protected by the Bill only while it remains confidential. Information originally provided in confidence but which it is no longer reasonable for the providing state to expect us to hold in confidence would not be protected by the Bill.
Those are the reasons why the three amendments cause the Government considerable alarm. I ask the Committee not to support them.
§ Lord Renton
Before the noble Lord, Lord Hutchinson, replies, or the noble Lord, Lord Mishcon, gives us the advantage of his wisdom on the matter, perhaps I may say a few words. I fully accept the motive which the Government have in mind as described by my noble friend. As he rightly said, confidences in international relations must be protected. His object is achieved by the combined effect of subsection (1)(a), subsection (2) and subsection (6), but I would also include subsection (1)(b) and subsection (3). I am afraid that I have rather bounced this on to my noble friend. I have given him no previous warning of it. He may wish to consider this purely as a matter of drafting, because that is all it is, between now and the Report stage.
§ Lord Hankey
I was a diplomat for 38 years and was engaged in bilateral relations and also in international organisations. I entirely share the Government's view about the disastrous effects when confidential documents are leaked. One does not continue to have the confidence of foreign governments which it is absolutely vital to preserve. I strongly recommend the Committee not to approve any of the amendments.
Lord Home of the Hirsel
In moving his amendment the noble Lord, Lord Hutchinson, spoke of the interests of the Government and then again of the interests of the state. Breaches of confidence in this context can be of absolute importance in terms of the interests of the state.
During the Second Reading debate on the Bill I gave two examples where I was certain that agreements would have been wrecked if information had been available which had been exchanged in confidence in the early stages. The first example was the agreement with the Americans over the Polaris submarine. The second referred to the test ban treaty with the Soviet Union. In neither case if there had been early leaks of information would we have achieved those agreements. Those agreements were of paramount importance to the interests of the state—to the interests of the Government of course, but also of the state. I agree with the noble Lord, Lord Hankey. In one case we should have lost the confidence of the American Government, and in the other the confidence of the Russian Government. I fully support the attitude expressed by my noble friend the Leader of the House.
§ Lord Harris of Greenwich
Perhaps I may say a few words on the amendment. I was slightly surprised at the rather apocalyptic language used by the noble Lord, Lord Belstead, about the consequences that would arise if the amendment were to be carried. I directed my attention to the first three words of subsection (1)(b): "any confidential information". For a relatively short period of my life I had a room in the Foreign Office next to the Foreign Office news department. Every day telegrams marked confidential—sometimes they were marked secret—were discussed quite naturally by officials in the Foreign Office news department and were in many cases thereafter disclosed to relatively small groups of carefully selected journalists. I did not think that there was anything reprehensible about that. It 1024 seemed to me that it was serving the interests of our foreign relations.
I found it very difficult to relate what I saw going on in the Foreign Office to the language used by the noble Lord, Lord Belstead. Confidential information which comes from our ambassadors following discussions with Ministers in the European Community and elsewhere is regularly disclosed to groups of journalists. It has been done by both Labour and Conservative Governments. So far as I know, no one has ever seriously suggested that the interests of the state were in some way being gravely damaged as a result of this.
I come back to the first three words of subsection (1)(b). The disclosure of "any confidential information" would constitute an offence. It is far too widely drawn, and, as I have indicated, there is no relationship between what the noble Lord, Lord Belstead, said and what happens in the Foreign Office every day of the week.
§ Lord Boyd-Carpenter
I hope that in this serious matter the Committee will accept the advice given by two Members of the Committee who have the greatest practical experience of the subject matter with which these amendments deal. I refer to my noble friend Lord Home and to the noble Lord, Lord Hankey.
It may well be the case—I say with respect that lawyers are apt to press their arguments a little far and a little hard—that the clause as it stands errs on the side of caution. However, in view of the importance of this matter, in view of the vital importance of ensuring that foreign governments should feel that when they give information to the British Government it will be secure, we should err, if we do err, on the side of safety. In the light of the warnings we have been given as to the risk of undermining foreign confidence in the security which our Government can give to information they receive, I express the strong hope that the Committee will reject all three amendments.
§ 3.45 p.m.
§ Lord Mishcon
I say with deep respect that in considering the amendments I hope the Committee will not be confused by the thought that any Member of the Committee wishes to risk the good international relationships between this country and any other country. In the margin next to the clause we see the words "international relations". It is with international relations that we ought to be dealing. We ought strictly to confine our comments and thoughts to those words.
For the purpose of my argument I entirely accept—not that I differ from the noble Lord, Lord Hutchinson—the view of the noble Lords, Lord Home and Lord Hankey, and say that none of us would want to see confidential matters which are really confidential being leaked to the detriment of this country's good name. None of us would want to see it and all of us would regard it as a serious matter which ought to be covered by the Bill.
The noble Lord, Lord Renton, said that in this clause we are dealing with international relations. 1025 He asked us to look at subsection (3)(1)(a). One is dealing there with an offence in regard to damaging disclosures of,any information, document or other article relating to international relations".Against the marginal description of "International relations", we find that someone who is or has been a Crown servant or government contractor will have committed an offence if he makes a damaging disclosure of,any information, document or other article relating to international relations".What, the noble Lord asked, does one need more than that except, where one is dealing with international relations, a definition of "international relations" in the context of this Bill? Subsection (5) on page 4 of the Bill gives a definition. Let us see how wide is the definition of "international relations". It means:the relations between States, between international organisations or between one or more States and one or more such organisations and includes any matter relating to a State other than the United Kingdom or to an international organisation which is capable of affecting the relations of the United Kingdom with another State or with an international organisation".All that the noble Lords, Lord Home and Lord Hankey, have said is covered by that language because if there is a leak which relates to international relations as defined here, it would cause harm to our country and disadvantage our relations with another country. It is an offence. Whether or not the language is too wide is not my argument. That I share with the noble Lord, Lord Renton. What does one do by opening a most mischievous door from the point of view of prosecutions, the law courts and defining the statute? My argument is what is subsection (1)(b) for? Subsection (1)(b) goes wide of international relations. With great respect to the Leader of the House, he dealt very fairly with all the arguments but not with this one. The subsection reads:any confidential information"—and confidential is defined in subsection (6), but it is not required if the word "confidential" does not appear elsewhere in the clause other than in subsection (1)(b)—
document or other article which was obtained from a State other than the United Kingdom or an international organisation".That has nothing to do with international relations, which the noble Lord, Lord Home, was anxious to protect. All of us ought to be anxious to protect that. It is something quite different, especially if it relates to a Government contractor.
Let us take it for granted that a government department enters into a contract with a United Kingdom contractor. The contractor has a specification which tells him to use a certain article. An international organisation dealing with health, or perhaps a Ministry in another country such as France, writes to him and tells him that the article he is buying from, say, Italy, has been tested and has been found to be dangerous. The contractor goes to the Ministry and tells it what he has been told. A Ministry official tells him not to worry but, as he is under contract to continue to complete the specification.
1026 That contractor, if he goes to any lawyer worth his salt, will be told that under this wording he dare not publish; he dare not allow anybody else to know. The contractor has told the government official in the Ministry, but he dare not say another word because of the wording in Clause 3(1)(b). First, it is confidential information; it is a document or another article which has been obtained from an international organisation. Lo and behold! the contractor is caught and dare not do it. He will be told that anybody can argue in court that this was harmful and therefore he dare not say a word.
This has nothing whatever to do with international relations. We have caught government contractors in this clause as well. In all seriousness, if the Government cannot accept the amendment today on the basis of what has been said by the noble Lords, Lord Renton, Lord Hutchinson, and others and, humbly, by myself, for Heaven's sake do not be obstinate merely because a brief rejects the amendments. These are serious arguments. The least the Government should do is take the amendments away, and read the debate, including the usual worthy contribution of the noble Lord, Lord Renton.
Worthy contributions are not always made in favour of submissions that I try to make to the Committee, but they are always worthy from the noble Lord. He made an even worthier contribution today because he agrees with the submission that I have made. The least the Minister can do is to take this away because here we are covering issues which we do not mean to cover. We are carrying into the clause government contractors and we are not dealing with international relations, which are ably dealt with in Clause 3(1)(a) and, with the one exception, the other clauses in the Bill. I make these submissions regardless of other submissions that I may make but which would not clarify the issue.
§ Lord Renton
The noble Lord has said that I and he agree entirely. I must confess, however, that I agree with only about two thirds of his argument. I was grateful for the extent to which we did agree. However, I plead with my noble friend Lord Belstead and with the noble Lord, Lord Hutchinson of Lullington. We have had a debate on what is, quite frankly, a rather confusing issue on a difficult piece of drafting. We have had contributions from noble Lords whom we respect immensely. However, there may be a feeling that we do not have this exactly right. I plead with the noble Lord, Lord Hutchinson, not to press his amendment but to withdraw it. I make a further plea to my noble friend Lord Belstead to take this away, as several of us have suggested, because it is worth further consideration.
§ Lord Belstead
The noble Lord, Lord Harris of Greenwich, expressed surprise that I had used what the noble Lord called. apocalyptic language concerning the leaking of foreign confidences. The reason for that and the answer were given by no less a Member of the Committee than my noble friend Lord Home who gave not one but two examples of occasions when foreign confidences had been of the most enormous importance. My noble friend gave two historic examples where there would have been great jeopardy if leaks had occurred.
§ Lord Tordoff
I am most grateful to the noble Lord the Leader of the House, but are we to suppose that those documents will be marked "Confidential" and not "Top Secret"? That is the difference.
§ Lord Belstead
We have not strayed at the moment into classification. Obviously the whole question——
§ 4 p.m
§ Lord Belstead
We have not. I shall gladly do so as something separate in a moment or two, but perhaps I may continue. The noble Lord, Lord Harris, at one time worked in the Foreign Office. He expressed surprise at the beginning that it seemed that all kinds of information was being given out to the press. I think the noble Lord ought to read the second line of Clause 3 which makes it clear that the clause deals with matters that are revealed "without lawful authority". Presumably when the noble Lord was working in the Foreign Office he was witness to information being given to the press with lawful authority.
I join my noble friend Lord Boyd-Carpenter in saying that I am also grateful to the noble Lord, Lord Hankey, and to my noble friend Lord Home for their advice that we should be careful and prudent about these matters. However, this has been an interesting debate. I have learned athing or two in the last quarter of an hour. I shall try to address myself to the point which has been put to me by my noble friend Lord Renton. We shall see whether that will take me a step or two further forward. My noble friend, who is a master of the art of drafting, may not perhaps be giving the interpretation to Clause 3(5) that the Government feel we should give. Subsection (5) defines international relations in a way in which, as I sought to make clear in my opening remarks, does not include the example of an issue domestic to another state but communicated to the United Kingdom in confidence.
I gladly give my noble friend an undertaking to look at the matter again. I shall ensure that in government we look at the drafting. However, if the Government are right, then in addition to subsection (5) one needs another subsection dealing with foreign confidences. That subsection is subsection (1)(b), which deals with foreign confidences. I give my noble friend the assurance for which he has asked and say that I shall look at the drafting of subsection (5) to see whether it includes foreign confidences.
Leaving that issue aside, it is absolutely clear that one requires a provision in the harm test which will deal with foreign confidences. At the risk of being tedious I should like to remind Members of the Committee of the example I sought to give. It was of another state providing us with information in confidence about its proposals on an entirely domestic issue not related to international relations but possibly being the subject of great political controversy in the state concerned. Then if we do not protect the information it may make that state highly reluctant to trust us further and may put our whole relations with that state in jeopardy.
1028 In that case it is not the nature of the information which has put in danger our interests abroad but the act of the breach of confidence. It has stripped away the trust between the other state and the United Kingdom. We must provide for such matters and that provision is made in Clause 3(3). Although there is an issue between myself and my noble friend Lord Renton as to whether the drafting of subsection (5) is right, I stand by the belief that we need subsection (3) beyond peradventure.
I should like to flesh out what I said about Clause 3(3). Its purpose is to make clear that when considering a case in the foreign confidences category the courts may take into account the element of breach of confidentiality in deciding whether the damage test has been made out. If we did not have subsection (3) it would be possible for the defence to argue in such a case that only the nature of the contents of the information was relevant and not the actual breach of confidentiality. If successful, that argument would start to make nonsense of the foreign confidences category.
Subsection (3) makes it clear that breach of confidentiality is also relevant. It is relevant but not conclusive. As Members will note, the subsection begins with the word "may" and not with the word "shall". Therefore, I stress the fact that the Government lay great importance on having subsection (3) in the Bill.
Returning to the main amendment, we also place great importance on the fact that we have in the Bill the main subsection which Amendment No. 16 seeks to remove; namely, foreign confidences. I believe that if the main amendment which has been moved by the noble Lord, Lord Hutchinson, were to be agreed to this afternoon, it would remove a category which would leave a serious loophole in the Bill. It would damage our ability to conduct our relations with other countries and with other international organisations. It would leave unprotected an area of information whose disclosure could have serious consequences for the interests of our country abroad.
As regards the principle of whether the main group of amendments should be agreed to, I ask Members of the Committee not to support them.
§ Lord Mishcon
I know that the Committee will recognise that this is an important matter and that I am not straining its patience if I address the Minister briefly in regard to his reply. First, I should like to thank him for dealing with my request of the Government to think again about the clause. The request was reiterated by the noble Lord, Lord Renton, to whom I am also grateful. It would be ungracious of me not to express my appreciation.
In view of the request, I shall not ask the Minister to do so this afternoon—it is for my noble friend Lord Hutchinson to say what he wishes to do with his amendment—but the noble Lord did not deal with my example of the government contractor who is also caught up in the issue.
In regard to the Minister's main submission that one needs a provision to cover the breach of confidentiality, I offer to him this thought, for what it is worth. Subsection (5) already contains the words: 1029includes any matter relating to a State other than the United Kingdom or to an international organisation which is capable of affecting the relations of the United Kingdom with another State or with an international organisation".In my view it is very simple to add the words:which may include the very fact of a breach of confidence".Those are not the words which must necessarily be included in the Bill. However, if it be desired one can include in the Bill, within the definition of international relations which are affected, the fact of a breach of confidence that may injure the relationships between two countries. One does not need a separate subsection (3).
I cannot speak for the noble Lord, Lord Hutchinson, but I am more than content that this useful discussion be reviewed by the Minister with a view to seeing whether he can accommodate the views that have been expressed. I hope that we may have his answer before the Report stage so that we shall know how to deal with the matter—that is, if the noble Lord, Lord Hutchinson, decides not to proceed with the amendments on that basis.
§ Lord Belstead
If the Committee will forgive me, I should like to make my position clear. I hope that on behalf of the Government I have made the position crystal clear. With all the experience that he has, I should like to believe that this is the view of my noble friend Lord Home and also of the noble Lord, Lord Hankey. I have tried to make clear to the Committee the fact that the Government deeply believe that, in addition to general information relating to international relations, we also need to protect material which, as I sought to explain, we call foreign confidences. I shall not cover that ground again. If that is the case, it must be covered somewhere in Clause 3. We have covered the matter in Clause 3(1)(b), which the first of the amendments tabled by the noble Lord, Lord Hutchinson, seeks to knock out of the Bill.
The noble Lord, Lord Mishcon, believes that it is a matter of drafting and that one can refer to foreign confidences under subsection (5). I believe that that is also the thesis of my noble friend Lord Renton. I undertake to look at the drafting and will write to my noble friend Lord Renton and send a copy to other Members of the Committee. That is a matter of drafting.
However, the Government deeply believe that foreign confidences should be covered in the clause. If that is done we need subsection (3) for reasons which I shall not go over again. For the reasons which I tried to deploy, we need subsection (3), but Amendment No. 18 moved by the noble Lord, Lord Hutchinson, would knock it straight out of the Bill.
Finally, subsection (6) refers to confidentiality. When something is no longer confidential one can take away that categorisation, and I believe that the noble Lord, Lord Hutchinson, will welcome that. There I have my noble friend Lord Renton very much with me. Therefore, on those grounds I do not agree with Amendment No. 20 either.
I come back to my undertaking. My undertaking is to look genuinely and honestly to see whether we have the drafting right no more and no less.
§ Lord Hutchinson of Lullington
There seems to be quite a degree of sweetness and light, but I am not quite sure what degree of light there was from the Leader of the House in his last words. He told the Committee that he has learnt a thing or two in the past half-hour and I consider that I have at least been instrumental in something which I never thought I should achieve in that short period. When the noble Lord, Lord Renton, makes an appeal to me, I always find it very difficult to resist.
Perhaps I may urge the noble Lord, Lord Belstead, to include a little more in the undertaking which he has given because I do not wish to push this amendment to a Division unless it is absolutely necessary. The noble Lord said that it is the breach of confidence which matters. He says that foreign confidences must be respected and must remain in this clause. The reason for the amendments is that we thought that in getting rid of Section 2 one had got rid of the mischief of ministerial classifications. We have got away from the position where one only had to stamp a document with a certain classification and it then became that for ever. The Government have said that they have got rid of that and everybody appreciates that.
However, the mischief in this clause is that it is drawn so broadly that any document marked "confidential", irrespective of its contents, will fall within the terms of the clause and potentially it will become a criminal offence if it is disclosed. We have tried to tighten this clause. Of course we do not wish to let out matters like the Polaris submarine and so on which would surely never have been classified "confidential". We are trying to deal with matters right at the bottom of the classification and to have a clause here which the whole Committee will agree to in accordance with everything which has been said about our relations with foreign states and so on but which would not potentially make criminal matters of triviality which, after all, can be dealt with by discipline.
The noble Lord says that we must be able to protect our confidences. Discipline within the departments and the service is quite a substantial discipline to deal with leaks on that sort of level. Perhaps the noble Lord can give an assurance that he will take this away and see whether he can not only look at the drafting but also try to tighten the clause so that we are not left with it quite as broad as it is at the moment and to give some possibility of hope that when we reach Report stage the Government may come some way towards assisting us as regards the matter of which we are complaining.
Perhaps the noble Lord will also bear in mind the effect of this clause on Clause 5 because the extent of it goes right out into the whole question of the journalist or ordinary person, but particularly the journalist or ordinary person, but particularly the journalist, who, under Clause 5, comes into possession of a document which is totally innocuous except that it has been stamped "confidential" and has to somehow make up his mind whether he will be committing a criminal offence if he publishes it. It would be of great assistance to us if the noble Lord would give those matters consideration.
§ 4.15 p.m.
§ Lord Belstead
I am glad that the noble Lord, Lord Hutchinson, rose to his feet again, and perhaps the Committee will allow me to speak once more. I am afraid that what the noble Lord said shows a complete gulf between his words and what the Government have said. The noble Lord put two main points to me. First, he repeated—and it is true that I had not picked up the point before, but I do now—that this will be a charter for everything under the sun to be marked "confidential". We are not talking under foreign confidences about this country giving security markings. The provision relates to information which is confidential because of the terms on which it was obtained from other countries. If the document is not received on those terms then it is not covered by the particular category. Therefore, that point is easily disposed of.
The second point which the noble Lord put to me is, "Oh well anyway if we look at Clause 3(2), which is what is called the harm test, it is so broad that it will catch everybody one can think of and it does not get away from ministerial certificates". With great respect to the noble Lord, Lord Hutchinson, that is not the case. When I pick up the Bill and I read that a 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 (abroad understood) or endangers the safety of British citizens abroad, I do not believe that anyone by any stretch of the imagination could say that that is so broad that if you leak information of that sort, you should not rightly be brought to book. If that is the gulf between the noble Lord and the Government on these amendments, I believe that we should have a Division.
§ 4.18 p.m.
§ On Question, Whether the said amendment (No. 16) shall be agreed to?
§ Their Lordships divided: Contents, 97; Not-Contents, 171.1033
|DIVISION NO. 1|
|Addington, L.||Ennals, L.|
|Airedale, L.||Ewart-Biggs, B.|
|Amherst, E.||Ezra, L.|
|Ardwick, L.||Falkender, B.|
|Blease, L.||Falkland, V.|
|Bonham-Carter, L.||Foot, L.|
|Boston of Faversham, L.||Gallacher, L.|
|Bottomley, L.||Galpern, L.|
|Briginshaw, L.||Gladwyn, L.|
|Brooks of Tremorfa, L.||Glenamara, L.|
|Carter, L.||Graham of Edmonton, L.|
|Cledwyn of Penrhos, L.||Gregson, L.|
|Cocks of Hartcliffe, L.||Grey, E.|
|David, B.||Grimond, L.|
|Davies of Penrhys, L.||Hampton, L.|
|Dean of Beswick, L.||Harris of Greenwich, L.|
|Donaldson of Kingsbridge, L.||Hatch of Lusby, L.|
|Dormand of Easington, L.||Hemingford, L.|
|Elwyn-Jones, L.||Howie of Troon, L.|
|Hughes, L.||Paget of Northampton, L.|
|Hutchinson of Lullington, L.||Phillips, B.|
|Irvine of Lairg, L.||Pitt of Hampstead, L.|
|Jay, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Jenkins of Hillhead, L.||Rathcreedan, L.|
|Jenkins of Putney, L.||Rea, L.|
|John-Mackie, L.||Ritchie of Dundee, L.|
|Kearton, L.||Robson of Kiddington, B.|
|Kirkhill, L.||Rochester, L.|
|Kirkwood, L.||Ross of Newport, L.|
|Leatherland, L.||Russell, E.|
|Listowel, E.||Seear, B.|
|Llewelyn-Davies of Hastoe, B.||Serota, B.|
|Lloyd of Kilgerran, L.||Shepherd, L.|
|Lockwood, B.||Stallard, L.|
|Longford, E.||Stoddart of Swindon, L.|
|Lovell-Davis, L.||Strabolgi, L.|
|Mackie of Benshie, L.||Taylor of Blackburn, L.|
|McNair, L.||Tordoff, L. [Teller.]|
|Mais, L.||Turner of Camden, B.|
|Mason of Barnsley, L.||Underhill, L.|
|Mayhew, L.||Wallace of Coslany, L.|
|Mishcon, L.||Whaddon, L.|
|Monson, L.||White, B.|
|Mulley, L.||Williams of Elvel, L.|
|Nicol, B.||Willis, L.|
|Ogmore, L.||Winchilsea and Nottingham, E.|
|O'Neill of the Maine, L.|
|Oram, L.||Winstanley, L.|
|Airey of Abingdon, B.||Dundee, E.|
|Aldington, L.||Dunrossil, V.|
|Alexander of Tunis, E.||Eden of Winton, L.|
|Allen of Abbeydale, L.||Effingham, E.|
|Allerton, L.||Elibank, L.|
|Arran, E.||Ellenborough, L.|
|Ashbourne, L.||Elliot of Harwood, B.|
|Balfour, E.||Erne, E.|
|Bauer, L.||Erroll of Hale, L.|
|Beaverbrook, L.||Faithfull, B.|
|Belhaven and Stenton, L.||Ferrers, E.|
|Bellwin, L.||Fortescue, E.|
|Beloff, L.||Fraser of Carmyllie, L.|
|Belstead, L.||Fraser of Kilmorack, L.|
|Bessborough, E.||Gainford, L.|
|Birdwood, L.||Gardner of Parkes, B.|
|Blake, L.||Gibson, L.|
|Blatch, B.||Gibson-Watt, L.|
|Blyth, L.||Goold, L.|
|Bolton, L.||Greenhill of Harrow, L.|
|Boyd-Carpenter, L.||Greenway, L.|
|Brabazon of Tara, L.||Grimston of Westbury, L.|
|Broadbridge, L.||Grimthorpe, L.|
|Brougham and Vaux, L.||Hailsham of Saint Marylebone, L.|
|Butterworth, L.||Halsbury, E.|
|Caithness, E.||Hankey, L.|
|Campbell of Alloway, L||Harvington, L.|
|Campbell of Croy, L.||Havers, L.|
|Carnegy of Lour, B.||Hayter, L.|
|Carnock, L.||Henley, L.|
|Cathcart, E.||Hertford, M.|
|Chelmer, L.||Hesketh, L.|
|Clitheroe, L.||Hives, L.|
|Cockfield, L.||Holderness, L.|
|Colnbrook, L.||Home of the Hirsel, L.|
|Constantine of Stanmore, L.||Hooper, B.|
|Cottesloe, L.||Hunter of Newington, L.|
|Cox, B.||Hylton-Foster, B.|
|Croft, L.||Jenkin of Roding, L.|
|Cross, V.||Johnson of Rockport, L.|
|Cullen of Ashbourne, L.||Joseph, L.|
|Dacre of Glanton, L.||Kaberry of Adel, L.|
|Daventry, V.||Kimball, L.|
|Davidson, V. [Teller.]||Kinloss, Ly.|
|Denham, L. [Teller.]||Lauderdale, E.|
|Dilhorne, V.||Lloyd of Hampstead, L.|
|Dulverton, L.||Long, V.|
|Lucas of Chilworth, L.||Pym, L.|
|Lurgan, L.||Reay, L.|
|Lyell, L.||Renton, L.|
|McFadzean, L.||Rippon of Hexham, L.|
|Mackay of Clashfern, L.||Rochdale, V.|
|Macleod of Borve, B.||Rodney, L.|
|Malmesbury, E.||Romney, E.|
|Manchester, D.||Rugby, L.|
|Manton, L.||St. Albans, Bp.|
|Margadalc, L.||Saint Brides, L.|
|Marley, L.||Saltoun of Abernethy, Ly.|
|Masham of Ilton, B.||Sanderson of Bowden, L.|
|Massereene and Ferrard, V.||Savile, L.|
|Maude of Stratford-upon-Avon, L.||Scarborough, E.|
|Merrivale, L.||Shannon, E.|
|Mersey, V.||Sharpies, B.|
|Middleton, L.||Shaugnessy, L.|
|Monckton of Brenchley, V.||Shrewsbury, E.|
|Monk Bretton, L.||Skelmersdale, L.|
|Morris, L.||Somers, L.|
|Mottistone, L.||Stodart of Leaston, L.|
|Munster, E.||Strange, B.|
|Murton of Lindisfarne, L.||Strathclyde, L.|
|Nelson, E.||Sudeley, L.|
|Nelson of Stafford, L.||Suffield, L.|
|Norrie, L.||Swinton, E.|
|Northesk, E.||Thomas of Gwydir, L.|
|Nugent of Guildford, L.||Thomas of Swynnerton, L.|
|Onslow, E.||Thurlow, L.|
|Oppenheim-Barnes, B.||Trafford, L.|
|Orkney, E.||Tranmire, L.|
|Pender, L.||Trefgarne, L.|
|Penrhyn, L.||Trumpington, B.|
|Peyton of Yeovil, L.||Vaux of Harrowden, L.|
|Piatt of Writtle, B.||Whitelaw, V.|
|Plummer of St. Marylebone, L.||Wise, L.|
|Porritt, L.||Young of Graffham, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.27 p.m.
§ Lord Mishcon moved Amendment No. 17:
§ Page 3, line 30, leave out ("jeopardises") and insert ("causes serious injury to").
§ The noble Lord said: After the debate which we have just had the Committee will be very familiar with the contents of Clause 3 and there is therefore no need for me to deal with it again. However, this amendment deals with one word in Clause 3. That word is part of a definition in the Bill of "damaging" when it relates to disclosure.
§ I am sorry that the noble Lord, Lord Renton, is not in his place because he described my speech as being so far as he was concerned two-thirds of what he felt was right. If he had been in his seat, and for reasons I shall come to in a moment, I had hoped that I might have received a totality of acceptance. He has spoken in this Chamber so often of the need for clear language, especially for criminal law and when courts have to be directed in regard to criminal matters.
§ The word "jeopardises", if I may say so, comes within the ambit of being extremely doubtful if one is seeking to obtain certainty and to direct a jury. There is no objection, as the Committee will see, to the use of the word "seriously", which is one of the words I have opted for in my amendment to take the place of "jeopardises"; namely, "causes serious injury to".1034
§ There is no objection to the word "seriously". It occurs in the alternative definition. There is acceptance too of the word "seriously" as I was trying to argue unsuccessfully yesterday; namely, that Franks had called for "serious" to be inserted for any offence that dealt with breaches of official secrets.
The Bill suffered an ill fate in Parliament but it was well intentioned. It contained the word "seriously". Almost all the statements of government Ministers that I quoted yesterday talking about any breach contained in this Bill used the word "serious". So that word cannot be an objection. When one considers the words,
causes serious injury to the interests of the United Kingdom abroad
one does something that makes the task of anyone trying to direct a jury much simpler than by using the word "jeopardises".
§ I note with pleasure that the noble Lord, Lord Renton, has resumed his place. In courtesy I owe it to him to say that I referred to him in his absence by regretting that absence. I said that I hoped on this occasion to have his total acceptance of my remarks instead of the fraction of two thirds. That is because the use of the word "jeopardises" is extremely difficult to apply when you are looking at the criminal law and at the necessity to direct a jury as to what it is to do. I am trying to assess what kind of evidence would have to be adduced by the prosecution to speak in terms of "jeopardises" instead of "causes serious injury to". Does "jeopardises" mean the possibility in some 10 or 15 years' time that there may be an alteration in good relationships? Does it mean a slight tilt in the balance between complete enmity and medium-sized enmity? What is the nature of the proof that would have to be adduced by the prosecution and which the jury would have to accept? As I have said, there is no objection to the word "serious" in this clause because we have it in the next line. Surely it would be so much more sensible to insert the plain words "causes serious injury to". I beg to move.
§ Lord Boyd-Carpenter
I do not share the uncritical enthusiasm that my noble friend Lord Renton has for the noble Lord, Lord Mishcon, and his argument. I believe that the point raised by the noble Lord, Lord Mishcon, on this occasion is simple. Although he did not say so, the effect of his amendment is to weaken the clause, which has been the effect of several previous amendments moved from that side of the Committee. If one has only to prove that the interests of the United Kingdom have been jeopardised, as I understand it one has to mean that they have been threatened. It does not mean that actual damage must have occurred. If one puts into the Bill the words proposed in the amendment, as I read them it would mean that a mere threat to the interests of the United Kingdom would not be sufficient. In order to constitute the offence damage must be visible and have been caused. That is a substantial weakening of the clause.
The noble Lord said that the word "jeopardises" means that perhaps you could say years hence that that may do some harm. That is an argument that a 1035 court would wish to consider. To take the provision from a threat to the security of the United Kingdom and to change it to actual damage having been shown very conspicuously weakens the effect of the clause. It is a very important clause. Therefore I hope that the Committee will decide to keep it as it is.
§ Lord Hemingford
We seem to have been conducting a debate on these amendments on the footing that the only way that the Government can get their civil servants to behave is to use the criminal law against them. It seems that it would be perfectly legitimate in this case to do what has been suggested, which is to raise the threshold a little on this subject.
We are dealing with a matter of criminal law and it seems that we are going over the top in suggesting that on all these matters everything has to come within the ambit of that law. It is quite clear from many events that have occurred recently and in what has been said during debates in the Chamber and elsewhere, that there are many other ways in which the Government can secure confidential matters short of using the criminal law. I believe that that is the purpose of trying to get a higher threshold on this subject.
§ Lord Renton
I can hardly resist taking part in the debate. The noble Lord, Lord Hemingford, was once a constituent of mine, my noble friend Lord Boyd-Carpenter was my best man and the noble Lord, Lord Mishcon, is claiming me, with some dubiety, as anally. Therefore I have no option but to say a few words. I believe it is perfectly plain that "jeopardises" simply means "endangers"; the two words are synonymous and they are meant to be so in the clause. To replace that simple proposition by introducing the words "causes serious injury to" will lead to all kinds of separate issues having to be tried when the matter comes before a jury. For example, did the leak cause the injury? What is the causation? Secondly, was there injury? Thirdly, was it serious? Fourthly, was it serious in relation to the interests of the United Kingdom abroad?
Those are four separate issues of fact that the jury will have to decide, and there will be great argument about each of them at the hands of extremely learned counsel—no names mentioned. I believe that justice would be more likely to be done and security more likely to be protected simply by using the word "jeopardises". I hope that my noble friend will resist this amendment.
§ Lord Monson
I support this amendment. While there is rarely if ever a case for revealing a secret that causes serious injury to the interests of this country, however disreputable the secret may be, different considerations may apply if the revelation merely causes embarrassment to the government of the day or even to the country as a whole. In reply to the noble Lord, Lord Boyd-Carpenter, I say that embarrassment does not really constitute a threat. The word "threat" is very emotive: if it is analysed it becomes rather less emotive. If the revelation in question caused Britain's balance of payments 1036 position to deteriorate by one-tenth of 1 per cent., in a sense it would be a threat but it would not be the end of the world. One should keep these matters in perspective, and that is the entire point of the amendment.
Perhaps I may give two examples in support of the argument. Let us suppose that a government contractor became aware of the fact that this country was selling slightly substandard, but not dangerous military equipment, such as vehicles, weapons or electronic equipment, that was either new or used to a friendly country—let us say for the sake of argument to a Commonwealth country—and his conscience prompted him into revealing this information to a journalist. Without doubt he would be caught by the Bill as it stands, because clearly he would have jeopardised the interests of the United Kingdom abroad, however justifiably from the moral point of view.
If, on the other hand, this amendment, No. 17, were agreed to, he would most probably escape conviction and might even escape prosecution, because he would then be in a position to argue that his embarrassing revelations had not on balance caused serious injury to the United Kingdom's interests abroad, but had on the contrary benefited them on balance, because it is clearly far better for this country's reputation that the substandard nature of the weapons should be discovered at an early stage when it is still not too late for the weapons to be replaced by this country with profuse apologies to the recipient country, than that the purchasing country should only become aware of the defective aspect of the weapons when they tried to use them against invaders or insurgents.
The other example is this. Just under two-and-a quarter years ago the Today newspaper, which I think was then still owned by Mr. Eddy Shah, published a most disturbing yet highly public spirited report which has never to my knowledge been satisfactorily explained away. To the best of my memory, the story went something like this. On 10th January 1987, an Army convoy was driving across Salisbury Plain in bad weather. Just outside Salisbury, two of the lorries skidded on a patch of black ice and at least one of the lorries went into a ditch. The lorries were later alleged to have contained nuclear depth charges. I do not know the accuracy of the allegation; but in any case, that hardly justifies what followed.
As the accident occurred on a public highway, a crowd gathered round, as crowds always do on these occasions. No civilian police were present. The officer or the NCO in charge of the convoy then proceeded—illegally, in my submission—to detain members of the crowd and asked for their names, addresses, occupations, and so on. They were only released once that information had been given. Subsequently, two-and-a-half weeks later, the Member of Parliament for the area in question—it goes without saying a Conservative Member of Parliament—learnt with considerable indignation that the names of at least three members of the crowd had been placed on FBI files in Washington. This really is an extraordinary state of affairs; law abiding citizens going about their lawful business, 1037 such as taking their dog for a walk, who might never even have been to the United States, find that their names are transmitted to the intelligence service of a foreign country!
It seems to me that when this happens the situation really is intolerable. It presupposes the existence of some secret agreement between the United Kingdom and the United States of America, providing for such confidential information about innocent United Kingdom citizens to be supplied to the Federal Bureau of Investigation in the United States in certain circumstances. Most people in this country would surely be in agreement with the contention that it would be in the public interest for any such agreement to be made public. It would then be up the Government to persuade the people of this country publicly that such an agreement was in their best long-term interests; that whatever the short-term infringement of freedom, the long-term threat to our security rendered such co-operation between the British military and the FBI worthwhile.
Whether they would succeed is open to question. It is one thing for the police to exchange information with their counterparts in another country about those convicted of serious criminal offences or those suspected of serious criminal offences. It is another thing for the British Army to pass information on to the FBI. Nevertheless, the opportunity would be there. But I submit that it is intolerable and against the public interest in a democracy for an agreement that infringes the rights of United Kingdom citizens to be kept secret. What this leads to, I submit, is that anyone who revealed the existence of such an agreement would be morally entitled to do so, and that though it would in the short-term jeopardise the interests of the United Kingdom abroad, in the long-term it would not cause any serious harm.
§ 4.45 p.m.
§ Lord Elwyn-Jones
It is perhaps as well to remember that what we are about here is to create a criminal offence, and therefore if that is to be done it must be clear and comprehensible. We are talking about a matter which must be considered by a jury. Also there will be public and press interest in the language of any new criminal offence that we create.
Is "jeopardy" really a clearly comprehensible guide to a jury? It was interesting that the noble Lord, Lord Boyd-Carpenter, thought that threats were contemplated in "jeopardy". It does not appear, to my mind at any rate, to contemplate threats at all. I suppose that the nearest thing would be "endangers", and I think one finds the word "endangers" later on in subsection (2)(a) of Clause 3. But what is important to bear in mind is that the word "jeopardises" in subsection (2)(a) has to be considered also in the light of subsection (2)(b). Paragraph (a) provides that,For the purposes of subsection (1) … a disclosure is damaging if—(a) it jeopardises the interests of the United Kingdom".Then, when we go lower down to subsection (3), we reach the situation where theunauthorised disclosure would be likely to have any of the effects there mentioned".1038 So we would reach the ultimate situation where there would be need of proof that what was disclosed would be likely to jeopardise. I cannot see that a jury would be guided in any helpful or comprehensible way by complicated language and concepts of that kind.
I support entirely the recommendation of the Franks Committee in 1972 that there ought to be a more rigorous definition of the harm test, and the one they recommended was that the disclosure would result in serious injury to the interests of the nation. This has been a theme to which we have returned more than once; but I should have thought that nothing less than that is justified if we are to create a new criminal offence in this field.
So the language lacks lucidity. It therefore lacks what ought to be—as has been said more than once in our debates in the Committee stage—a feature of the creation of a new part of criminal law. Therefore I hope very much that on this matter the Government will feel it right, prudent—and indeed just—to substitute the words proposed in the amendment to this subsection; namely, that the disclosure causes serious injury to the interests of the nation.
The noble and learned Lord, Lord Elwyn-Jones, said that what we are doing is creating a criminal offence, and of course he is quite right. The noble Lord, Lord Hemingford, said that what we are dealing with here are civil servants and the criminal law; and I think the inference was that we were treating them too harshly. The whole Bill is about where the criminal law bites and where it does not bite. To use the argument that we are dealing with civil servants and therefore we should treat them leniently does not carry much weight, because if they find themselves in a position of being accused of something, they have the right of defence. There are plenty of places within the Bill giving them that right.
The criminal offence is that in Clause 3(1):A person who is or has been a Crown servant … is guilty of an offence if … he makes a damaging disclosure".Then Clause 3(2) goes on to say what a damaging disclosure can be.
We are discussing the way in which we should express, and protect from harm, this country's interests as they affect our relations abroad. International relations are rarely conducted in a climate of direct cause and effect. The harm which unauthorised disclosures may cause to our interests abroad can be indirect and can be delayed. It is nevertheless real and predictable. For example, a disclosure may disrupt our relations with another country; but, except perhaps for some expression of displeasure through diplomatic channels, there may be no immediate reaction from that country. Nevertheless, our interests abroad may be put in danger. Because of a particular unauthorised disclosure, our interests are no longer as secure as they were. We are vulnerable and know we are vulnerable to some direct form of retaliation as soon as the opportunity arises. Or we may know that as a result other States, alarmed by the revelation, may 1039 not come forward to assist us when we need their help.
My noble friend Lord Boyd-Carpenter was entirely right when he said that the amendment seeks to weaken the Bill, because it seeks to put in place of "jeopardises" the words " causes serious injury to". Thus it has to be shown that serious injury has been caused, whereas "jeopardise" relates to exposing to danger or loss or injury. That is a very different matter.
Of course, the prosecution will have to show that these are real interests and real risks. It would not be sufficient simply to show that our relations with another state or with an international organisation had been disrupted. In the White Paper which we presented last June we proposed that the test of harm should be one of prejudicing dealings between the United Kingdom and another state or international organisation. We accepted the criticisms which were voiced on that proposal that it was too distant from real harm to this country's interests and could apply where no harm followed the disruption of relations.
We therefore included in the Bill the test of harm which the Committee is now considering. It is a more exacting test. We believe that it properly reflects the harm against which the country must be protected in the field of international relations. It is sufficiently clear to allow the prosecution and the defence to introduce evidence, and for the jury to make a decision on the basis of that evidence. I remind the Committee that it is the jury who decides these matters in individual cases. If the prosecution cannot satisfy the jury beyond reasonable doubt that the interests of this country have indeed been jeopardised by a disclosure, it will not convict.
I do not believe that the phrase "serious injury" fits the circumstances as well or as reliably as "jeopardy". As my noble friend Lord Boyd-Carpenter suggested, our interests abroad may not necessarily be seriously injured by a disclosure—assuming a court would be able to accept and interpret the metaphor—but they could well be put in danger. The criminal law ought properly to be put in place to protect us against such matters.
The noble Lord, Lord Mishcon—and indeed the noble and learned Lord, Lord Elwyn-Jones—called upon Franks, and they said that he had used the word "serious". I suggest that we should not wish to press too far comparisons with the recommendations of the Franks Report. Of course, Franks made a valuable report and much of it is still valid today. But on the central issue of a harm test I do not think that many of the Committee would want to go back to Franks. After all, he advised that we should have ministerial certificates, and not many Members of the Committee would want that. The Government produced a Bill 10 years ago which was based on Franks. It was so unpopular with Parliament that the Government were obliged to withdraw it.
The Franks Report recommended that the disclosure of some categories of information should be subject to a test of "serious injury to the interests of the nation"; that was a test which the Minister would have had to apply before issuing a ministerial 1040 certificate. It was a general test about the interests of the nation—and those interests were not further defined. It was a wholly different approach. I have explained why we have the specific harm tests in the Bill. It is a consequence of the decision not to have ministerial certificates, but to leave the determination of harm to the jury. The general harm test proposed by Franks was put forward in the context of a very different structure. The Franks test was to be determined by a Minister. The Franks Report equally made it clear that the Franks Committee did not consider that the test which it had proposed was one which a jury could be asked to apply.
The proposition in this amendment is that it is all right to put our interests abroad in jeopardy by the unauthorised disclosure of information relating to international relations. I hope the Committee will not accept the proposition that unless the harm can be proved to have caused or be likely to cause serious injury to our interests, the criminal law cannot be invoked. Choosing words is always difficult, but I believe that we have the right words in the Bill.
§ Lord Renton
I respectfully agree with all that my noble friend has said. In the course of his remarks he used the word "endangers". In the context he clearly meant it as being synonymous with "jeopardises". I think all jurymen and jurywomen would know what "endangers" means; but there may be some who do not quite understand what "jeopardises" means. Therefore, it may be for consideration at Report stage whether the word "jeopardises" might be replaced by "endangers". Perhaps my noble friend would care to think about that.
§ Lord Hutchinson of Lullington
I should like to support that suggestion. As someone who has had quite a lot to do with juries, I think the jury are going to be told by the judge that first of all they have to decide whether it is damaging. When they have decided that, they have to decide whether it jeopardises. Two lines later there is the word "endangers". The jury have all those different words to consider. We have already heard other suggestions in this debate, such as "harm" and "threaten". I can imagine a judge going through all those words trying to explain to the jury what they mean. Although I support what the noble Lord, Lord Renton, said, of course I support more what the noble Lord, Lord Mishcon, said.
§ Lord Mishcon
And of course I support completely what the noble Lord, Lord Hutchinson, said, which means that all is sweetness and tranquility. Perhaps the Minister will add to that tranquility by saying, at least as a compromise, that the word "endangers" will be looked at. It would be even better if he were able generously to accept that that word should be substituted. It would indeed be an historic occasion if in regard to this Bill, as distinct from many that we have had in recent times, there were some concession somewhere by the Government to the cause of common sense and justice.
The jury would obviously have clear guidance on what "jeopardises" means. I think 1041 "jeopardises" is the right word; but it would be churlish of me to say that I would not even consider what your Lordships have said. It sounds to me like an elegant variation of words. But I shall certainly consider the points which have been made without any commitment that I shall say at the end that "endangers" is better than "jeopardises". These matters often require not only an intellectual examination of how the courts work but also a reference to the dictionary.
§ Lord Mishcon
It is with regard to those semi-gracious words that I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 18 to 20 not moved.]
§ Clause 3 agreed to.
§ 5 p.m.
§ Clause 4 [Crime and special investigation powers]: [Amendment No. 21 not moved.]
§ Lord Hutchinson of Lullington moved Amendment No. 22:
§ Page 4, line 27, leave out subsection (3).
§ The noble Lord said: I do not wish to jeopardise the patience of the Committee so I shall briefly move Amendment No. 22 and speak also to Amendments Nos. 24, 25 and 26. The meat of what is proposed is contained in Amendment No. 26; the other amendments simply make room for that amendment.
§ As drafted, Clause 4 deals with the disclosure by a Crown servant or government contractor of information affecting crime. Subsections (3), (4) and (5) deal with disclosures of information obtained by what one can call "phone taps", or as a result of the issue of a warrant under the Home Secretary's authority. Indeed, that issue was dealt with in the Security Service Bill some time ago.
§ The amendments refer to Clause 4(3). To disclose such information— that is, the phone taps and the warrants— is an absolute offence. Further, the earlier disclosure, in subsection (2), is also an absolute offence if that disclosure results in the commission of an offence, facilitates the escape of a prisoner or impedes the prevention or detection of crime, or if it is likely to do so. One must always remember that aspect.
The amendments seek to make the offences subject to a "damage" requirement— that is, the absolute offences— and provide a defence, the same one as is to be found in Clause 1. Those provisions are to be found in Amendment No. 26. The amendment will be familiar in form. It substitutes for subsection (3)of Clause 4 the words set out on the Marshalled List, as follows:
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 of any information, document or other article to which this section applies and which is or has been in his possession by virtue of his position as such".
It then refers to subsection (2) paragraphs (a) and (b), which are precisely the same as those contained
in the Bill at present under subsection (3). It goes on to state:
For the purposes of this section a disclosure is damaging".
Then it sets out what we had before; namely, the "damage" contained in Clause 1(4) which we have already discussed. In our new subsection (4), the defence is provided as it is in Clause 1(5). Therefore the amendment simply introduces a damage defence into the absolute offences in this clause.
§ I should just like to make this comment. Some disclosures of telephone tapping information would obviously be damaging; but other disclosures could be completely innocuous. Let us suppose that I am informed by a civil servant that my telephone was tapped some considerable time ago but that the result of that action had been entirely negative. If I disclose the fact years afterwards that that did actually happen on an occasion, then I would be committing a criminal offence. Wily should the interception merit absolute offence status? We know from what we have already been discussing that the disclosure of, say, NATO secrets, or nuclear submarine technology secrets, requires (under Clause 2) "damage" to form a criminal offence. Further, sensitive negotiations involving possibly even armed hostilities or negotiations on the defence of the currency (as under Clause 3) require "damage" to make them a disclosure which constitutes a criminal offence. Why should it be an absolute offence to disclose anything to do with that one form of surveillance, when other forms of surveillance require proof of damage?
§ Many forms of surveillance take place; for example, filming someone secretly, listening to their conversation on a radio in a motor car or following them in their movements. Why then should telephone tapping be given the status of an absolute offence? I commend the amendment to the Committee because I think it is a sensible one. It simply gives the damage defence to such disclosures, such as applies to other equally important disclosures which must have caused damage in order to make them a criminal offence. I beg to move.
§ Lord Belstead
If I may say so, I think that we should bear in mind that this is an area where Parliament has already established a clear statutory framework in the Interception of Communications Act 1985. Further, this Chamber is at present in the process of establishing some further aspects of that statutory framework by means of the Security Service Bill. The reason I started my reply by stressing that point is that if the noble Lord, Lord Hutchinson will forgive me for saying so, he is to some extent treading over ground which has been very well trodden, and recently trodden, in the Interception of Communications Act. I say that because the framework which we already have in place recognises the vital nature of the powers about which we are talking and because their effectiveness depends upon absolute secrecy about how and when they are used, and about what information they produce.
The framework established by the two statutes to which I have referred also contains some important safeguards. For instance, there must be a warrant for such activities, authorised directly and personally 1043 by the Secretary of State. There is also the provision that the Secretary of State's decisions are kept under review by an independent commissioner. The powers may be used only to secure information for purposes which Parliament has already approved.
In addition, the statutory framework provides a tribunal to consider complaints in relation to warrants. Parliament has accepted in relation to interception, and, if the Security Service Bill is approved will have accepted in relation to the powers under that Bill, that such actions are essential to the effective protection of the security and well-being of the country as a whole.
Clause 4(3), which the amendment moved by the noble Lord would change radically, is consistent with the statutory framework that I have described. It recognises that any unauthorised disclosure about the exercise of those instruments weakens their effectiveness. In such circumstances, it would not be right or sensible to introduce a test of harm, which is the effect of the amendment. All unauthorised disclosures are harmful. If the operational techniques are disclosed, or the information obtained can be disclosed, the value of the instruments would be rapidly diminished; and the effect, in this case, is cumulative. Once something is known about those instruments, it is not safe to assume that that information cannot be identified and deployed to reduce the chances of detection in the future and to threaten those whose lives can depend upon the secrecy of these measures about which we are talking in Clause 4.
The principle in Clause 4 is therefore a sound and necessary one. We should not introduce a harm test to an area where we believe that any disclosure is likely to be harmful. That is why I resist the proposition that a harm test should be put into the Bill. A harm test would require one to accept that some unauthorised disclosures connected with the information in Clause 4 are not harmful, and the Government do not agree with that proposition.
We believe therefore that the result of this amendment would be to encourage disclosures of matters which must be kept secret and would make it very difficult ever to mount a prosecution in this sensitive area and to prove that harm had been caused by the disclosure. I do not believe that is what the noble Lord would want, but I fear that might be the result. I ask the Committee to recognise that in this narrow and statutorily controlled area any unauthorised disclosure of information about or obtained by a warrant is detrimental and that the criminal law should be invoked to protect the nation from such disclosures and so to preserve the value and the confidentiality of those vital provisions. It is for those reasons that I resist the amendment.
Before I finish, perhaps I may return to the point which I mentioned earlier. There may be a residual feeling that, although the collection of information under Clause 4 is enormously important and should be secret, are there not safeguards? I referred to them only in passing. It is difficult to think of an area where there are more safeguards. There is the need for personal warrant to be authorised by the 1044 Secretary of State personally. Each warrant is to be open to scrutiny by a judicial commissioner. If a member of the services is concerned about any matter in relation to a warrant, he can raise it through his line management, or, if he so wishes, with the newly appointed independent staff counsellor, who, if necessary, can report to the Secretary to the Cabinet or the Prime Minister.
The noble Lord mentioned the possibility of someone mentioning, wrongly, that his telephone had been tapped. If that were to happen, that person could seek an investigation by applying to the relevant tribunal, and any warrant in respect of that complainant would be reviewed by the application of the principle of judicial review. In the area covered by Clause 4 there are the fullest and most effective safeguards. They reinforce the Government's view that it is not necessary or desirable to encourage disclosure outside those careful and necessary structures, which I am afraid would be the effect of the amendment.
§ 5.15 p.m.
Lord Campbell of Croy
I share one view expressed by the noble Lord, Lord Hutchinson of Lullington; that is, why necessarily telephone tapping when nowadays there are so many other devices which could be used for eavesdropping, commercially or in any other way, which are much less obvious? Over the past 20 or 25 years, the general public have always been worried about telephone tapping. They regard it as an invasion of their privacy and something which should be carried out only sparingly and for the good reasons which have been accepted by Parliament.
I hope that our telephone system will improve, but given the number of crossed lines and all the other things that go wrong with one's telephone when one is trying to make contact, I have always thought it strange that individuals should regard their telephone lines as privately secure. That has been the history of this matter. I was much involved in the 1985 changes, which resulted in the Act to which my noble friend has referred, which brought in a system to ensure that warrants issued by Secretaries of State were properly looked into. I was a Secretary of State—I believe the only one in the Committee—for four years responsible for issuing warrants. I was determined to do that exceedingly sparingly and only when it was clear that it was necessary.
I say that only because it illustrates how telephone tapping has been regarded as a serious invasion of privacy. There is now to be an arrangement in respect of the security services application for telephone tapping with which the Home Secretary has to deal. Those affecting crime are dealt with by the Home Secretary and the Secretary of State for Scotland.
Although the noble Lord, Lord Hutchinson, raised the matter in his usual way and pointed out that there are apparently illogicalities, the amendment should not be accepted. The important point is that if information is given away—even if the information is utterly worthless and not secret or sensitive—to someone who might be involved in crime or anything else, that may be an indication 1045 that there is a special system of interception because that is the only way in which that information could have been discovered. That surely must be the overriding factor when one is dealing with the subject of interceptions — the fact that some bit of information could have been discovered only by some means which one does not want a criminal or band of criminals to find out about.
§ Lord Hutchinson of Lullington
Surely the noble Lord will agree that there are hundreds of other ways, as he said, in which the information could be obtained. That is one of the problems.
Lord Campbell of Croy
I referred to that point. I said that the general public have regarded telephone tapping as a matter which should be covered by legislation, and it is. I, like the noble Lord, have always been surprised—no doubt in future more legislation will be introduced—that some of the other ways that can be used by individuals or commercial firms for eavesdropping have not been brought within the ambit of legislation. However, that is another question. There are situations where something might have been said only over a certain telephone, and if that piece of information got out if would give away to the criminal, or whoever it was, that the telephone was being tapped.
§ Lord Mishcon
Before too many people take the credit for the fact that the Interception of Communications Act contains those provisions, perhaps I may remind my colleagues in this place that the incorporation of those sections in the statute was bitterly opposed by the Government. I had the privilege of moving the amendment that those clauses be in the Bill, and happily this place accepted the amendment.
§ Lord Belstead
Yes. But with great respect to the noble Lord, they are on the face of the statute. The effect of this amendment is to begin unravelling the law as we have it.
§ Lord Mishcon
I was only explaining what has happened on previous occasions with amendments which had been moved by the Opposition — a tradition which has unfortunately not been followed in recent weeks and months.
§ Lord Hutchinson of Lullington
The noble Lord, the Leader of the House has replied on the basis that there are many ways in which complaints can be dealt with. This does not involve complaints, with the greatest of respect. The amendments were an attempt to get rid of the mischief of the absolute offence. I only wish that the Government could understand the appalling problems in the criminal courts which arise from absolute offences. Absolute offences are anathema to those who are in the criminal courts. They are anathema to juries, they will never be watertight and they will always give rise to leaks. They will always give rise to verdicts which, on the face of them, are perverse. This was yet one more attempt to try to get rid of making criminal offences of disclosures which may be totally 1046 trivial, totally innocuous, totally stale and yet they will remain criminal offences.
However, having regard to the time and the number of matters of this kind with which we have already dealt, obviously there will be no point in pursuing the amendment into the Division Lobbies. In those circumstances, I withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 23 to 25 not moved.]
§ Clause 4 agreed to.
§ [Amendment No. 26 not moved.]
§ Clause 5 [Information resulting from unauthorised disclosures or entrusted in confidence]:
§ [Amendment No. 27 not moved.]
§ Clause 5 agreed to.
§ Clause 6 [Information entrusted in confidence to other States or international organisations]:
§ [Amendment No. 28 not moved.]
§ Clause 6 agreed to.
§ Clause 7 [Authorised disclosures]:
§ Lord Bonham-Carter moved Amendment No. 29:
§ Page 7, line 7, at end insert ("as prescribed by regulations which shall be made by the Minister for the Civil Service.
§ (1A) No regulation shall be made under subsection (1) above unless a draft of it has been laid before and approved by a resolution of each House of Parliament.").
§ The noble Lord said: This is a probing amendment, somewhat relevant in my view in the light of the discussion we had earlier this afternoon about international affairs. In that discussion my noble friend Lord Harris raised the question of the degree of discretion exercised by civil servants in disclosing confidential information to journalists and others. The amendment deals wi1h the authority under which they do so.
§ Clause 7 is concerned with the occasions on which a civil servant, a Crown servant—he can either be a Crown servant or a government contractor—or a notified person may make a lawful disclosure on matters falling within the scope of the Bill. The answer to that is that a civil servant has lawful authority to make a disclosure if—and only if—it is made in accordance with his official duty or, as I understand it, if it is authorised.
§ I should like to investigate a little more carefully what constitutes authorisation and how it is obtained. During the Second Reading of the Bill the noble Lord, Lord Greenhill of Harrow, I think it was, said that before the last war a distinguished civil servant, Mr. Wigram, passed substantial information which might be regarded as highly confidential to Mr. Churchill when he was out of office. That information proved to be important to Mr. Churchill, though hardly helpful to the government in power at the time. The question was: who authorised Wigram to pass this information on to the formidable opponent of the then government? It was suggested by some persons that he authorised himself. The idea of authorising oneself to 1047 ordinary human being apparently is slightly odd; but I am told that it is extremely common in the Civil Service. I am reliably informed that a man of Wigram's seniority and standing would be able to authorise himself. I take it that under the Bill the same process would take place.
§ However, in addition to self-authorisation, there is the guidance which is given to civil servants as to what they may disclose in Civil Service codes. That probably allows authorisation, as I have said. I wish to know at what point people can start authorising themselves, at what level of seniority. When the late Donald Maclean was head of the American department, was he sufficiently senior to authorise himself to pass information of a certain kind onto the USSR or was he not? This seems to me to be a matter of some public interest.
§ The clause which we seek to amend covers not only Crown servants who presumably know what their official duty is because they have been taught that in the course of their careers but who have access to civil service codes. It also covers Government contractors and persons who have been notified by the Minister, which we have discussed earlier. It seems to me that if those last two categories of persons are to be liable to criminal prosecution, they should know beyond peradventure where they stand in these matters and what is the meaning in their position of official duty and the extent to which they have discretion in respect of disclosure.
§ It is therefore suggested in the amendment that the regulations set forth should be made by the Minister for the Civil Service. Furthermore, those regulations should be made public and laid before both Houses of Parliament. It is in order to discover the extent, nature and authority of the authorisation to disclose that I am moving the amendment. I beg to move.
§ Lord Croham
I shall be very interested in the Minister's reply to this point. I wish to draw the attention of the noble Lord, Lord Bonham-Carter, to the fact that the definition of "Crown servant" in the Bill includes a Minister of the Crown. It is a fact that for many years there has been no clarity about who is entitled to authorise disclosures. But one rule has always applied to my knowledge. That is that Ministers are self-authorising. Senior civil servants only act if they believe that their Minister would authorise their disclosure.
It may or may not be appropriate for the Minister for the Civil Service to issue regulations which apply to Ministers. I suspect that even if he did, the Minister would always regard it as consistent with his duty to disclose. I think also that when one tries to draft those regulations one will find that the answer is almost as vague as it is now. But I rest on my point. Servants of the Crown include Ministers. Ministers will normally be self-authorising.
§ 5.30 p.m.
The Franks Report recommended that it should be an offence for a Crown servant to make an unauthorised disclosure only if he made it:contrary to his official duty".1048 The report said:This is a clear form of words which should be understood both within and outside the Civil Service".The noble Lord, Lord Mishcon, will be delighted to know that on this occasion I believe that Franks was right. That is why the reference to official duty in Clause 7(1) follows his recommendation.
The amendment would require the Minister for the Civil Service to make regulations setting out all the circumstances in which any Crown servant could make a disclosure of official information within his official duty. The amendment would also require the Minister to make a similar provision in respect of notified people. I ask the Committee to contemplate for a moment the magnitude of that task. The term "Crown servant" is defined in Clause 12(1). It includes, as the noble Lord, Lord Croham, suggested, Ministers, civil servants of every rank and hue, diplomats, the Armed Forces, and the police. The regulations would have to identify, define and prescribe the duty of each of these people in relation to their responsibilities in respect of any disclosure of information which they might lawfully make. Generalities and injunctions are not regulations, nor are principles and precepts. Regulations mean detail, and vast detail at that.
It is not just the number and variety of people whom the regulations must cover; it is also the tremendous variety of circumstances in which any of them may disclose official information. It is simply not feasible to lay down in precise and enforceable form exactly what every Crown servant ought to do in accordance with his official duty in respect of any particular disclosure in any particular situation. But that is what the amendment of the noble Lord, Lord Bonham-Carter, would require. Nor do I believe that such regulations are necessary. In practice, Crown servants well know where the boundaries of their powers and responsibilities lie. If they are in any doubt, they have a clear responsibility to refer to their seniors for guidance. In this way Crown servants can reasonably be expected to know what is and what is not in accordance with their official duties.
But in the context of the disclosure offences in the Bill, it is not for the Crown servant to show that his disclosure was in accordance with his official duty. It would be for the prosecution to prove beyond reasonable doubt that it was not. If a Crown servant has no reason to know that his disclosure was not in accordance with his official duty, then he has a complete defence under subsection (4) of this clause. That is full and sufficient protection, for anyone who might genuinely have mistaken his responsibilities.
The 1911 Act includes the concept of authorisation by a Crown servant for disclosures. Following Franks, the present Bill uses the concept of official duty. If a disclosure is made in accordance with a Crown servant's duty, it is lawful in the nature of his duty, and therefore his authority for any disclosures he makes depends on the nature of his work, in other words his duty. That applies as much to Ministers as to anyone else. I am sure that we are right to leave this kind of decision to the jury, rather than attempt the impossible by trying to legislate for such decisions in advance. Much depends on the 1049 circumstances in each case and in such matters it is right that it should be for the jury to hear the facts, to weigh the circumstances and to make its own independent judgment.
But there is a point of principle which goes deeper, and which the amendment raises. It has long been recognised and held that Crown servants are answerable to Ministers and that Ministers are answerable to Parliament for the actions of those who are responsible to them. For that reason matters concerning the conditions and responsibilities of Crown servants have always been considered to be matters for the Crown and not for Parliament. This amendment would make a most significant change to that by requiring Parliament to approve regulations relating to the exercise of a Crown servant's official duty. This would have the most profound implications for relations between Parliament and the Executive which will not be lost on the Committee. I am sure that the Committee would wish to think very carefully whether it would be wise to make such a change. I hope the Committee will not wish to do that. I do not believe the noble Lord, Lord Bonham-Carter, will wish to do that either.
§ Lord Bonham-Carter
I am most grateful to the noble Earl for his reponse to the probing amendment which I moved. I believe that he rather exaggerated the extent and the difficulty of providing guidance to officials as regards how they should and should not behave. That is common practice and there is a thing called Estacode which I always understood did precisely that. Therefore we are not asking for a totally comprehensive bible which would deal with every possible eventuality and every possible grade of servant of the Crown. However, I do not propose to press this amendment. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 7 agreed to.
§ Clause 8 [Safeguarding of information]: [Amendment No. 30 not moved.]
§ Lord Mishcon moved Amendment No. 31:
§ Page 7, line 34, at end insert ("without reasonable cause and").
The noble Lord said: In moving this amendment I wish to speak also to Amendments Nos. 32, 34 and 35. The Committee will observe that in each case I am trying to insert by the amendments the words "without reasonable cause". I shall quickly tell the Committee, as I am speaking to these amendments comprehensively, what the offences are to which I wish to add the words "without reasonable cause". At the moment they are absolute offences. In Clause 8(1)(a) the offence concerns a civil servant retaining a document:
contrary to his official duty".
Clause 8(1)(b) concerns a government contractor failing to return or dispose of a document when officially directed to do so. Clause 8(4)(a) and Clause 8(5) concern an offence committed when a member of the public fails to return or dispose of a document when directed to do so.
§ If the offence is absolute, it means that when a defendant appears before the court while it may be in mitigation in regard to punishment, at the moment the court is bound to convict on the basis of an absolute offence. The absolute offence occurs because there is a direction to return a document in one of those three categories, and the document is not returned. The Committee may well feel that no prosecution would ever be brought if there was a reasonable cause for the document not to be returned: for example, if the person was ill or the document had been mislaid. Incidentally, there is a separate provision for taking proper care of documents which are of a security nature. One may ask whether a prosecution would be brought in those circumstances. The answer is that there could be a perfectly legitimate difference of opinion between someone in the Civil Service and the Attorney-General as to whether or not the cause was reasonable. The defendant is at least entitled to be able to argue that point before a jury if he is charged with this criminal offence.
§ All I am seeking to do is to give the defendant the opportunity—it may be a poor opportunity, it may be a satisfactory opportunity—of saying to the court that there was a reasonable cause for his not being able to return the document. I am seeking an opportunity for the defendant to be able to ask the court to accept his reasonable cause and therefore to be entitled to an acquittal. If the court does not find the cause to be reasonable, there will of course be a conviction. I beg to move.
§ The Lord Advocate (Lord Fraser of Carmyllie)
I hope I can persuade the Committee that these provisions are not necessary in the context of the offences in Clause 8 of the Bill.
As has been explained, the offences we are discussing are concerned with the wrongful possession of documents or articles which it would be an offence under this Bill for the possessor to disclose. We are talking therefore of a person who wrongly possesses material whose disclosure would harm this country's essential interests.
I hope that the noble Lord who moved the amendment is in no doubt that, by definition, such a person has no right to retain such documents or articles. They are not his or hers and so there should be no issue here for the court to determine. Nor can there surely be any question about a person's right, whether it be the Crown or anyone else, to demand the return of his own documents: that principle must apply to official papers as much as to any others. The circumstances in which documents may not be retained and must be returned or destroyed are clearly set out in the relevant clauses and in the light of those principles.
The Committee will see that the circumstances are clearly directed to the person who may be holding the document or article in question. If it is a Crown servant, the proper test is that the Crown servant retained it contrary to his official duty. Reasons for retention can be discussed within that test, but it is difficult to see why a Crown servant should retain documents in any other circumstances.
1051 Secondly, I can see no valid reason why anyone else who receives an official direction for the return or disposal of a document or article should be able to ignore it. As the noble Lord has pointed out, the provisions for government contractors under Clause 8(1) and for others under Clause 8(4) and (5) are in this respect the same. Such a direction must be duly given under the terms of Clause 8(8). Assuming that requirement is met, I do not believe that there should be scope for additional argument.
I understand that the noble Lord is concerned that there may be circumstances in which someone is required to return a document but is physically unable to do so immediately because, for example, he is on holiday or received the direction to return it as he was on the point of going away and has not been able to comply with the direction. Provided that he complies as soon as it is possible for him to do so, no failure can be shown. (I hope that that will satisfy the noble Lord.) If it is impossible for him to comply because the document is no longer in his possession or under his control, then there is no offence. That is because, as Clause 8, subsections (1), (4) and (5) make clear, the offence only applies to a person who has such material in his possession or under his control. In such circumstances there is no question of inadvertent offending.
The point at issue here is whether or not a person should have a choice about complying with the direction to give material back to its owner. We do not accept that there can be any reason for a person wrongly in possession of sensitive material to have discretion about whether or not he returns it or disposes of it. These are therefore necessary offences. They do not involve the same degree of seriousness as the other offences in the Bill, and that is marked by their lesser penalty provided under Clause 10(2). But that does not mean we should provide the means for them to be set at nought.
What these amendments would mean in practice is that anyone could destroy a document or an article on receiving a valid direction for its return and could then seek to argue reasonable cause. Of course whatever the court then decided, nothing could bring back the document. The loss of that document would be irretrievable.
It would mean also, that Parliament would have accepted, in our view quite unnecessarily, that there must be circumstances in which such a direction could be flouted and would then leave the courts to establish without further guidance or direction what those circumstances might be.
These are considerations which should not and need not apply to these offences. They are not central to the point at issue and they are not needed to ensure that the provision operates fairly and reasonably. I hope that on the basis of that explanation the noble Lord will not press the amendment.
§ 5.45 p.m.
§ Lord Croham
I should like guidance on one point affecting this clause. As I interpret it, it covers any document created by a Crown servant or former Crown servant which includes information which it 1052 would be an offence to disclose. Therefore any diary in which a Minister or senior official has been misguided enough to include such information would have to be surrendered under the requirements of this clause. That seems to me to be a rather severe absolute offence.
§ Lord Mishcon
If I may say so, I hope in not too convivial language, I could not agree more with the noble Lord. Having said that, however, time is such that it does not seem worth while to continue an argument about the insertion of the proposed words. I believe that they ought to be there. The defendant ought to be given the opportunity not of saying why he is entitled to retain the document as against the true owner. That would be nonsense because, as the Minister pointed out, title is in the Crown. The only use that could be made of those words is to say, "I know that I have to return the documents but unfortunately there were circumstances which prevented me from doing so". That could be the only defence.
I wonder whether the Minister would agree to consider that argument before we meet again at Report stage. If he agreed at least to do that I should take a certain course.
§ Lord Fraser of Carmyllie
I can say to the noble Lord, and to the noble Lord who raised the additional point, that there are certainly some circumstances in which it might be misunderstood what documentation we are talking about. We are talking about those documents which are official documents and which the Crown servant has in his possession, as Clause 8(1) indicates, by virtue of his position as a Crown servant. Those documents should be returned to their rightful owner and it is right to invoke the criminal law in respect of such material. The present law contains similar offences.
However, this may be what the noble Lord is driving at. I accept that the principle cannot be pushed beyond physical material which was acquired by a Crown servant or a government contractor in the course of his duties. We recognise that that means, for example—and the noble Lord nods, I think in appreciation of what I am about to say—that, if a Crown servant were to write a private diary for his own use and included within it information he acquired during his daily work, that would be outside the offence which is contained within Clause 8(1). I hope that that will satisfy the noble Lord. If the government contractor, or a person subject to the provisions of subsection (4), were to retain the information contained in the official document in another form, such as a diary, under this provision he could not be directed to give up that diary.
We think that it would go beyond the principle of the offences to require a person to give up his own property. Under the terms of the Bill, if a person disclosed the official information that he had recorded in his diary, he might well be liable in respect of another offence.
Having given that explanation of what material is covered and would require to be returned, and having separated it from other information that has 1053 been acquired but recorded in a different form, I hope that the noble Lord will withdraw his amendment.
§ Lord Mishcon
I must not press the matter further, but I had hoped that, in the light of what I had said, the Minister would offer to consider whether the words giving the opportunity to the defendant of pleading a reasonable excuse could be inserted. I endeavoured to tell him that, obviously, the title to the document could not possibly be an issue. That could not be an argument before the court. Am I to understand that the noble Lord will be kind enough to consider the amendment, or that he cannot consider it?
§ Lord Fraser of Carmyllie
By explaining to the noble Lord what occurred to me as properly concerning him—namely, that the ambit of what was sought to be covered here was too wide—I had hoped to indicate to him that that view would be a misapprehension of what we sought to do. We are dealing with just the type of documentation that I have indicated to him. In those circumstances, where it is so narrowed down, I must say to him that I cannot see in what circumstances it would be necessary to have the "reasonable cause" provision. As I indicated to him in my opening remarks on this amendment, if a person were to be ill or on holiday at the time when a direction to comply was made, I do not see that there would have been any offence. Accordingly, there would not be the necessity for that person to have the opportunity to go into court and plead his "reasonable cause". In such circumstances, given the narrowing of the provisions of the clause as I have indicated with regard to the two directions, I respectfully say to the noble Lord that the amendment is not necessary and invite him not to press it any further.
§ Lord Mishcon
I cannot continue the dialogue, pleasant though it is and courteous though the Minister is. I should like to say how much I appreciate his courtesy as it is the first time since he has been on that Bench that I have had the privilege of exchanging views with him. I shall ask for leave to withdraw the amendment. I merely say that I may return to the issues at a later stage because I do not believe that the point that I was trying to make has been sufficiently answered. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 32 to 35 not moved.]
§ The Deputy Chairman of Committees (Baroness Cox)
I should point out that, if Amendment No. 36 is agreed to, I shall not be able to call Amendment No. 37.
§ Lord Mishcon moved Amendment No. 36:
§ Page 8, line 18, leave out subsection (6).
The noble Lord said: I have yet to find a criminal offence drawn in a statute—the Government presumably hope that the measure will become law—in such vague and unintelligible language. I shall most respectfully tell the Committee what this
clause says and what it is supposed to mean. It states that "A person"—that person can be a journalist, a noble Lord, any citizen of this land or, indeed, someone who is not even a citizen of this land but is resident in the United Kingdom or finds himself there—
is guilty of an offence if he discloses any information, document or other article which —
I am trying to imagine any of our learned judges going through the clause to find out the offence with which the defendant before him has been charged and what the clause in effect means. Without in any way endeavouring to ridicule the language in the Bill, I propose to tell the Committee what must be done about the clause: it must be taken away and redrawn. There is not the slightest doubt about that and if the Committee believes that it is necessary—as it may well do—for me to point out some of the gross inadequacies, ambiguities and impossibilities of the clause, I shall do so, but only by giving a few examples.
§ The Committee will notice that the offence is to disclose information—not information that may be dangerous, but information that a Crown servant also holds. The Bill does not require that the information should have been obtained from the civil servant; it does not say that, however indirectly. The offence would be committed if a person had quite independently acquired information that was the same or happened to be the same as was held by a civil servant. That means that, if both the civil servant and the individual have received identical information from a third party, the individual would commit an offence by passing it on. However, if only the individual and not the civil servant had received the information, no offence would have been committed.
§ I turn next to the point that must have occurred to noble Lords: would the offence be committed even if the person had no idea that the same information was held by a civil servant? Under the wording of the clause, the answer must be, yes. I repeat: if the civil servant does not have the document, it is not an offence. If he has, or has had, the document that is being divulged by the individual in question, it is an offence. It is an offence even if the individual concerned had not the slightest idea that the civil servant had the document. If ever there was a Gilbertian situation which would have inspired that great comedian and author to write something by way of a song, it must be this matter.
I promise that this will be the last point that I shall make regarding the absurdity of the clause. The clause states that an offence is committed if it is committed in circumstances in which,
it would be reasonable to expect",
that it would be used to obtain access to protected information. If someone does not realise that it will
be so used, he presumably has no defence at all if the test is applied that it would be reasonable to expect that he should have had that belief in his mind.
§ I retire to my seat hoping that the Committee will realise that, if there was ever a clause that must be taken back, it is this one. I ask the Minister to say, especially at this hour, that the clause must and will be taken back. I hope that another clause which is at least intelligent will come before us at Report stage. I beg to move.
§ 6 p.m.
§ Lord Renton
The noble Lord, Lord Mishcon, has done a service in inviting us to consider this subsection. He is right to point out that when a case comes to court the judge would have to direct the jury. I must confess that I would not envy the judge—and in days gone by I have directed juries in a number of cases in a lower jurisdiction as a recorder and chairman of Quarter Sessions. With this subsection there would be a number of questions of fact which the judge would have to describe to the jury. If he were wise he would give a list of them in order to make quite sure that the jurors applied their minds to each of the questions of fact separately and clearly. As the noble Lord rightly invited us to do, it is right therefore that we should decide whether we are asking too much of the judge and jury.
Having said that, one should bear in mind that the Government are in a little difficulty in this matter. They have to cover unusual circumstances in which documents can go astray. I hope that one of my noble friends on the Front Bench will tell me if I am completely off-beat, but there have been cases reported in the papers in which, for example, secret documents have been left in taxi-cabs. Indeed, a few years ago there was the notorious case in which a whole pile of documents sent by the department for pulping did not get pulped but were found on a rubbish heap.
It seems to me that a person—and it might be any person, as the noble Lord said—who picked up such documents would perhaps be caught by the terms of this subsection, and perhaps the Government may wish him to be caught because the documents could be very important and sensitive. No doubt one could instance many other kinds of circumstances. Therefore an offence is probably needed to cover the type of circumstances that I have mentioned. We must however be quite clear that we are properly formulating this offence, which is quite separate from the offence described in Clause 8(1) and dealt with in the first five subsections of the clause. We must be quite sure that we get it right.
Let us consider what the judge would have to invite the jury to evaluate. First, that the person had disclosed—it does not say to whom, it merely says"disclose"— information or a document. Secondly, it has to be a document which a Crown Servant or a contractor has had or has in his possession. That is the second issue: had the document been in the possession of a Crown servant or a contractor? Thirdly, has that person had it in his possession by virtue of his position as such? That is the third 1056 issue for the jury to decide. Then—and this is not alternative but cumulative—sone comes to the proposition that the information or document:can be used for the purpose of obtaining access to any information" —one should say "other information" —document or other article protected against disclosure by the foregoing provisions of this Act".We know that those provisions are listed but the judge would have to instruct the jury as to what they are; otherwise the jury could not reach a finding of fact.
§ Lord Mishcon
Before the noble Lord continues his most useful analysis, perhaps I could mention that he passed over one item; namely, that it is not necessary under this section for that poor person to know whether or not the Crown servant or government contractor has had the document. By the mere fact that he has had it, even if he does not know it, he has committed an offence.
§ Lord Renton
I am very grateful for that interjection. Of course that is so, but I should have thought that it was self-evident, and the judge would perhaps be wise to mention to the jury that it was self-evident.
I have dealt with the factor of whether the document is capable of being used. So there are five factors. None of them is simple and some of them are matters necessarily of inference. It may be that there has to be an offence of this kind but I wish that somehow it could have been framed in broader terms. I must confess that I have not thought of an alternative formula. I have enormous respect for parliamentary counsel, who are very able and careful men—I believe that most of them have double firsts. They are bound by the instructions given to them by the departments, generally from a department's middle range civil servants.
I think it would be of enormous value when they are drafting the terms of an offence, whether or not they have had experience of seeing how cases are tried at the Old Bailey, if they could think through the question of how the judge would present it to the jury and ask themselves whether it would be possible to frame the offence in a broader way and in more simple terms so that its real essence was covered without the need to go into quite so much detail when directing the jury.
I am afraid my comments have been rather lengthy but I promise that they are intended to be constructive. I simply say to my noble friends on the Front Bench, because it is not clear from the explanatory note which only deals with the first part of Clause 8 and not at all with the second part of it, that it would be helpful if the Government would explain what they are trying to achieve in framing this offence. When we have that explanation we shall have a clearer ideas of whether the description of the offence is as it should be or whether it might be more simple.
§ Lord Hemingford
We have heard two very distinguished lawyers addressing this amendment and I am sure that we all share their sympathy for a judge who is trying to interpret it or a jury who is trying to interpret what the judge has said. Perhaps 1057 I may say a few words on behalf of the hapless citizen who may be charged or feels that he may be charged under this section. I have quite a lot to do with the training of journalists and I would have the utmost difficulty in trying to interpret to journalists where this clause puts them.
It appears to me that they would be guilty of a criminal offence if they published something which was also in the possession of a Crown servant. They may have had no knowledge of that fact but yet be guilty of an offence. That is a simple lay view. Someone may tell me that it is wrong but we should try to make the provision clearer.
I am the first to accept that where we are dealing with matters of criminal sanctions we have to be precise. I do not believe that this is precise. I am certain that the noble Lord, Lord Mishcon, is right when he says that it must be rewritten.
§ Lord Hutchinson of Lullington
I support what was said by the noble Lord, Lord Renton. Perhaps I may add to the stirring of this pot by saying that the clause might be called a podge. One ought to have a word for these clauses. This is a podge clause. It is a poor old jury clause. This is about the fifth or sixth time one has had a podge clause in the Bill. I should like to know whether, in addition to the six matters that will have to be explained to the jury, this will be an absolute offence. That appears on the face of it to be the case. Secondly, does the disclosure have to be an unauthorised disclosure? Does that have to be proved?
§ Lord Renton
At the end of the subsection we find the words,reasonable to expect that it might be used for that purpose without authority".It goes as far as that.
The noble Lord, Lord Mishcon, agonised over the spectacle of the learned judges going through this clause trying to find out what it means. Frequently I have sympathy with learned judges and indeed lesser learned mortals who have to go through Acts of Parliament trying to discover what they mean. However, that is because I am not a lawyer. I shall try to illuminate the passage so that the noble Lord will know at the end of what I have to say a little more than he did at the beginning about what the clause is intended to do. I was grateful to my noble friend Lord Renton for his careful analysis of the clause. He was quite right when he said that the Government have to protect themselves against rather difficult and different circumstances.
The amendment would remove from the Bill the offence of disclosing official information which could be used to gain access to protected information in circumstances where it is reasonable to expect that the information might be used for that purpose. Clause 8(6) creates an offence where a person discloses any material which a Crown servant or government contractor has had in his possession and which could be used to obtain access to material protected under the provisions of the Bill. The offence is, however, subject to the important proviso 1058 that the circumstances in which it is disclosed must be such that it would be reasonable to expect that it might be used to obtain such access without authority.
This provision forms an important element in the safeguards which the Bill provides against the unauthorised disclosure of information which the criminal law must protect. Its removal would leave a serious gap which would allow people quite lawfully to provide access to the information protected under the Bill even though they had reason to expect that the interests of this country might be damaged as a consequence.
This provision is necessary to avoid leaving a situation where someone minded to make a disclosure could avoid any liability under the Bill simply by not disclosing the information himself and instead telling someone else how to obtain it. Without this provision he would have committed no offence. The person to whom he gave that information would himself escape any liability under the Bill for any disclosure he might make because he would not have acquired the information by any of the routes set out in Clause 5(1)(a). He could publish it widely, very serious harm could be caused to this country's interests and no one would have committed an offence.
I have an example. Let us suppose that the results of a particularly sensitive international negotiation had to be passed to a senior official in ways which, because of the circumstances, could not be wholly secure. A person who disclosed information about these delicate negotiations might well have committed an offence under the Bill. But what about the person who explained at some gathering discussing the negotiations the method by which the senior official was to obtain that information? Without this provision he would have committed no offence.
My noble friend Lord Renton asked what would happen if a person left his papers in a taxi. The offence in this Bill is one of disclosure. Leaving a document in a taxi accidentally is not a disclosure and such circumstances are therefore outside the scope of the Bill.
The noble Lord, Lord Mishcon, also raised a point of concern. It is true that if it is official information it is not necessary to prove that the defendant knew that it was an official document. The point is met by the requirement that the circumstances are such that the defendant had reason to expect the use to which the information might be put.
There are four elements to the offence, all of which the prosecution would have to prove beyond reasonable doubt. First, the prosecution must prove that it was official information which was disclosed. I can reassure the noble Lord, Lord Mishcon, that this provision does not and cannot deal with a disclosure which is not of official information, even if the information happened to be identical to the information held by a Crown servant. This offence, like all the other offences in the Bill, relates only to information, a document or other article which is or has been in the possession of a Crown servant or government contractor in his official capacity.
1059 Secondly, it must prove that that information could be used to give access to protected material. Thirdly, and most importantly, it must prove that the circumstances of the disclosure were such that it was reasonable to expect it might be used for that purpose. And fourthly, the access must be access without authority. These points properly cover the effective elements of this offence and provide proper protection for ensuring that frivolous or ill-based prosecutions cannot succeed.
The Committee will see from this description that the offence cannot be committed inadvertently. A person who gives such information is liable only if in the circumstances of his disclosure he has reason to expect that the information he disclosed might be used to obtain access to protected information. If he has no such reason, he does not commit an offence; nor of course would someone commit an offence if he gave access to someone who had proper authority to obtain such material.
This is therefore a proper and a necessary provision to protect against a real and serious danger. Its removal would leave an important loophole, easy to exploit. Those who knowingly give access to protected information commit as grave an offence as those who disclose it. If the Committee agrees that the information covered by the Bill should be protected by the criminal law, then it would be right to ensure that the Bill gives effective protection and cannot be evaded with such ease. To remove Clause 8(6) would create a substantial gap in that protection, allowing harmful disclosures to be made out of the reach of the law. I hope that the Committee will agree that the importance of this offence concerns the whole protective structure of the Bill and that in the light of my explanation the noble Lord might be prepared to withdraw his amendment.
§ Lord Mishcon
I believe that the noble Earl has misunderstood the whole purpose of my remarks based on this amendment. I am not quarrelling with the fact that there could be an offence of the nature that he described which the Committee ought seriously to consider. I am saying that it is a little far-fetched to think in terms of somebody committing an offence by disclosing information when he does not know that a civil servant has it or has had anything to do with it. If a civil servant has that information, or had it in the past, it is an offence, whereas if a civil servant did not have it, but the person received if from another party, he would not be committing any offence.
My remarks were not addressed at an offence that I failed to be sure about after going through a very careful analysis, as did the noble Lord, Lord Renton. I just did not know what the offence was supposed to be. That was the predicament of the noble Lord, Lord Hemingford. The noble Earl read out what the offence is meant to be. The whole gravamen of what I was trying to say was that the present drafting is unintelligible and renders a judge quite incapable of guiding a jury properly and knowing what the offence is supposed to be. In my view the Committee cannot even consider the offence without there being clear words stating what the offence means.
1060 I shall be corrected if I am wrong, but I believe that I am reinforced in my belief by the noble Lord, Lord Renton. Both of us accept that there may be an offence which ought to be covered by the Bill. We are saying that we cannot consider it at the moment because that offence does not appear to be clearly defined with the constituent elements that make it plain to the layman or even to a judge. In those circumstances I merely ask the Minister whether, in the light of our observations, he will take this away to see whether it ought to be redrafted, we hope before the Report stage. If he courteously says that that is what he will do, I shall withdraw the amendment. I repeat that my purpose is to know with what offence I am dealing. At the moment I do not.
§ Lord Renton
I believe that the noble Lord is reasonable in asking my noble friend to consider the drafting of this between now and the Report stage. I also hope that he will consider one of the points I made, but I cannot complain that he did not deal with it. In the first line of the subsection we see the words "if he discloses". We do not know what in the circumstances the word "discloses" means. To whom? To his wife? To anybody else? To a person also in authority? That presumably would not and should not give rise to an offence. Perhaps therefore the words "to any unauthorised person" should be used, but then we ask the question who is an authorised person in the circumstances? It is a difficult concept, but it is one which, (as the noble Lord, Lord Mishcon, was good enough to say) has to be covered otherwise there will be a gap in the Bill.
We should be grateful to my noble friend Lord Ferrers for the full description that he gave of the Government's intentions. But in the light of the discussion I hope that he will consider this further because I do not believe that he and those advising him have fully considered the various issues which the noble Lord, Lord Mishcon, and I have attempted to raise.
§ Lord Bonham-Carter
I hesitate to intervene again, but I wholly support what the noble Lord, Lord Hemingford, said. From reading the Bill I could not understand what the offence was. I should also like wholly to support what the noble Lord, Lord Mishcon, said in response to the noble Earl's explanation. If neither he nor the noble Lord, Lord Renton, can understand what the offence is, what is a wretched layman such as myself to do? It seems to me important that the law should be vaguely intelligible to those to whom it applies. When I was listening to the noble Earl's explanation I wondered whether I should understand it at the end. I am afraid that I did not. I wondered whether, if the noble Earl had thrown his piece of paper away, he would have been able to explain the offence to us himself. I suspect he would not. I hope that the combined mystification of lawyers and laymen alike will persuade the noble Earl to take back the amendment and to produce something at Report which we can all understand.
Lord Home of the Hirsel
In Parliament I always dislike transferring something from Committee to Report. It usually leads one into trouble. But it is extremely difficult, in fact it is impossible, to visualise a better draft. I cannot help thinking that there ought to be one. Therefore, I hope that my noble friend will be able to respond to the plea made by the noble Lord, Lord Mishcon, that he will look at this again without any guarantee that anything better can be produced.
I always find the noble Lord, Lord Mishcon, a difficult person to satisfy. First, he says that the whole clause is unintelligible and he sympathises with the poor judges who have to find their way through it. Then when I try to explain what the amendment means he castigates me and says that all I did was to read out a brief. That is perfectly true. I did for very good reasons, reasons which the noble Lord will understand. I hoped that that was being helpful, but the noble Lord said that it was not and that what he really wants is a redrafting.
I am conscious of what has been said here. I should refer to the question that my noble friend Lord Renton asked. He asked whether he creates an offence if he discloses information to his wife. The test lies in the reference to the circumstances to give access without authority. Disclosure to the wife allows circumstances unlikely to be those where he would be guilty of an offence. I fully understand the concern that the Committee has expressed. I shall certainly take this away and look at it again to see what can be done, if anything. I say this without any commitment because if the noble Lord, Lord Mischon, and other noble Lords find it difficult, there is probably a reason why the parliamentary draftsmen also do not find it easy. I shall certainly take into account what the Committee has said. Perhaps the noble Lord will be satisfied with that answer.
§ Lord Mishcon
I did not know that I was difficult to satisfy. I can only tell the noble Earl, with a smile from this Dispatch Box, that he is the most difficult Minister to convince. I am obliged to the noble Earl not only for having read out his brief, which was most helpful—I make that absolutely clear—but also for his promise to look at the drafting again in the light of what has been said.
I fully appreciate that the noble Earl gave no undertaking that the wording would be altered. I similarly give no undertaking that I shall not show how ridiculous this wording is if it is not altered. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 37 not moved.]
§ Clause 8 agreed to.
§ [Amendment No. 38 not moved.]
§ 6.30 p.m.
§ Lord Monson moved Amendment No. 39:
§ After Clause 8, insert the following new clause:
§ ("Disclosure where public safety is threatened1062
- (1) It is a defence for a person charged with an offence under this Act to prove that —
- (a) the information, document or other article in question revealed the existence of a serious and imminent threat to public health or safety; and
- (b) effective action to protect the public from the threat had not been taken; and
- (c) 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.
- (2) In the case of a Crown servant, government contractor, or person referred to in section 1(1) above subsection (1) of this section shall only apply if before the time of the alleged offence he had taken all reasonable steps to craw the threat to the attention of the appropriate authorities without effect.").
§ The noble Lord said: This is a compromise amendment and as such I trust that it will be regarded more favourably than was Amendment No. 38 which we discussed yesterday. Unlike that amendment, Amendment No. 39 does not touch upon crime, fraud or security matters. It limits the de facto public interest defence to cases where the health and safety of the British public are considered to be at risk.
§ It is a Conservative amendment—Conservative with a capital 'C'. That may surprise Members of the Committee because no names of Conservative Peers are tabled with the amendment. The explanation is that an almost identical amendment was tabled in another place by two extremely senior and distinguished Conservative honourable members—indeed, one was a right honourable member. Neither has been associated with the group of Conservative Back-Benchers who have been pressing for liberalisation of the Bill as a whole: that is, Mr. Aitken, Mr Alison, Mr. Churchill, Mr. Gorst, Mr. Shepherd and so forth. Their amendment was a one-off; it was their only deviation from supporting the general principle of the Bill.
§ Such an amendment is needed because under the Bill as it stands there can ostensibly be no threat of criminal prosecution in respect of matters revealed pertaining to public health and safety. However, that remains true only provided that no foreign states or international organisations are involved and that defence issues are not involved, even tangentially; in other words, provided that the provisions of Clauses 2, 3 and 6 are not infringed in the course of alerting the public to the dangers which face them.
§ But it is those exceptions which are potentially alarming from the point of view of public safety. It would mean that without explicit government permission it would be illegal to reveal that a foreign airline had been earmarked by terrorists for a possible bomb attack if the information was not generally known to the public. It would be illegal to reveal that hitherto unpublished fire hazards had been discovered in the Channel Tunnel. It would be illegal to reveal that a foreign shipping line had been identified as the route by which rabies was entering the country. It would be illegal to reveal that new hazards had been found in hormone-treated meat imported from a foreign country. If, in return for another country's support at the United Nations on an issue where the United Kingdom found itself in a minority we secretly agreed to take that country's toxic waste for reprocessing, it would be illegal to reveal the fact.1063
§ Let us suppose that this country was on the point of signing a contract with an oil-rich Middle Eastern country for the re-equipping of its air force in the face of intense competition from France, West Germany, Italy and Japan, with the prospect of vast benefits to our balance of payments and the promise of 20,000 jobs in unemployment blackspots. Let us say that the DHSS then discovered that a large consignment of that country's date exports to this country had been contaminated with listeria. The Government may have felt inclined to suppress such news until the contract had been signed for fear that otherwise, in a fit of pique, the other government might refuse to sign the contract and award it to France or Germany. They may have privately argued that, as the event occurred in the summer and most people eat dates at Christmas-time, the statistical probability of anyone dying from eating a date in the meantime was slender. A civil servant with medical expertise might believe that the Government were running a totally unacceptable risk. However, under the Bill as it stands it would be illegal for him to reveal his anxieties to a journalist.
§ Threats to safety devolving from defence matters are also effectively censored by the Bill as it stands. Therefore, it would be illegal to reveal that low-flying aircraft on training flights, or certain gunnery ranges in Dorset, Norfolk or elsewhere, constituted a greater danger to the public than had hitherto been generally imagined.
§ We are all worldly enough to acknowledge that, from time to time, hard-boiled realpolitik must of necessity be practised in this modern age as in all previous eras. Nevertheless, the health and safety of our people must remain paramount. I beg to move.
§ Lord Hemingford
The need for this amendment stems from the extraordinarily wide scope of the Bill in the area of defence and international relations, which we have already discussed at some length, and the general definition of what disclosures are damaging. They are located in Clauses 2 and 3, which state that an unauthorised disclosure is damaging if:it damages the capability of, or of any part of, the armed forces of the Crown to carry out their tasks"—That task could have little to do with the defence of the realm, as was mentioned yesterday—or … it jeopardises the interests of the United Kingdom abroad"—one cannot get much broader than that—or … seriously obstructs the promotion or protection by the United Kingdom of those interests"—what a relief it is to find that the word "seriously" has been allowed to creep into the Bill—or endangers the safety of British citizens abroad".I understand that that could mean that almost anything written about the Middle East, for example, might, if based on information from another country, be caught since it might endanger the safety of a hostage.
Those are wide definitions and they mean that information coming from another government or an international organisation could not be disclosed without authority, even if it revealed the existence 1064 of a serious and imminent threat to public health or safety and effective action had not been taken to protect the public from that threat.
As the noble Lord, Lord Monson, said, matters affecting health and safety which arise within the United Kingdom and have no defence or international connotations would not come within the scope of the Bill though they are covered by the present Act. In this amendment we are not dealing with internal information that has no international or defence connotations, and we are not dealing with spies or intelligence agents.
The amendment seeks to ensure that information about threats to public health or safety, if that information has an international or defence dimension, could be disclosed if on the balance of the argument the public interest was served by its being disclosed. The definition is narrow. The threat to public safety or health must be both serious and imminent and the defence would have to prove that no effective action had been taken to protect the public from it. But that is not all. The defence would also have to show that, if some damage resulted from the disclosure, it was outweighed by the public interest in it being disclosed; and a civil servant would also have to show that he or she had exhausted the internal machinery for dealing with such matters.
In an era when the export of acid rain, the disposal across international borders of toxic waste and matters like the danger of faults in aircraft and the possibility of infection of imported food are all matters upon which international organisations and governments exchange information, it is appropriate to require a defence of this sort. That is especially so when commercial considerations might well result in a government trying to keep secret information on such matters.
The noble Lord, Lord Monson, gave many examples of how that might arise and I shall not seek to give others. However, before any of us begins to feel that this public interest is a carte blanche for disloyal leakers, a coach and horses, a massive wedge or any of the other exaggerated metaphors which we have heard about public interest, we should recognise how narrowly it is drawn and how rarely it is likely to come into effect. I do not believe that it would be wise to argue that, because it would only rarely be used, we should not have it at all. I believe that it is quite conceivable to imagine circumstances in which it might be necessary. I hope that the Committee will accept that this is a public interest defence so tightly drawn that it can be adopted.
§ Lord Houghton of Sowerby
I apologise for coming in after the amendment has been moved and seconded but I have been unavoidably detained upstairs. However, I have come in especially to deal with this amendment because I had an experience when I was in government which casts serious doubts upon an amendment of this sort.
Perhaps I may say in advance in regard to many of the amendments before the Committee, that I am absolutely against legislating in terms which give civil servants the impression that they have a duty 1065 or right to monitor all that is going on around them and to make a statement to inform their fellow citizens of something which they deem to be of national interest. That is not the direction in which we should indicate the conduct of civil servants. I submit that there must be an alternative to that course of action.
Perhaps I may now come to this amendment. When I was in government I was appointed chairman of a Cabinet Committee on winter emergencies which was concerned with fuel, power, the possibility of power cuts and the repetition of what had become known as a "Shinwell winter". Our duty was to take account of the best predictions which we could get of what the winter was likely to be like and to make decisions accordingly. Therefore, we received advice from the Meteorological Office, with all the computer and other aids which they had, that it was possible that we were to have a winter in five. A winter in five was severe but a winter in ten was going to be a fairly bad winter. However, ours was to be a winter in five.
The question then arose: How do we meet this possible severity of winter? We went through all the possibilities; namely, the coal stocks, transport, stocks in the hands of the electricity and gas industries as they were at that time—all the precautions which could be taken silently and without conspicuous public attention.
We then had to decide what we should say to the public. Should we alert them to the possibility and send them into the shops to buy supplementary fuel appliances and more paraffin? Should we import large numbers of candles from Belgium? What should we do? After careful consideration and taking account of all risks we decided to do nothing. We decided to take all the precautions we could in private and not make a public announcement.
What about some busybody of a civil servant who thought: this Government are playing fast and loose with the public? They have a warning from the Meteorological Office and they have decided to suppress it. When you consider what the press will do to you if you take the wrong decision or even take none at all, you have to be very careful about taking risks. I believe that we had the worst press which we have ever had from the point of view of the stability of government, the dignity of Parliament and the public interest. We cannot afford to take any risks at all with the press in its present reckless mood. In those circumstances we were obviously taking a risk. A civil servant could have taken advantage of this amendment to say, "I feared that the public health and safety would be put in jeopardy. All the fire grates of England would be empty, all the lights would go out, all the electricity would go off, all due to the fact that this Government and their Cabinet Committee did not have the guts to tell the public". That is my objection to this amendment.
However, that is only part of the general objection I have to giving civil servants the impression that they have some kind of right to communicate directly with the public if they think that there is something which the public should know and if they have—and 1066 one wonders whether they do—taken all practical steps to have the position remedied through ordinary channels. I do not believe that we can take this risk. I believe that we are giving the wrong sort of signal all the time. After all, the sort of civil servant with whom we are dealing is not down at the bottom because he has avenues for taking his troubled conscience higher, which is what a civil servant should do. We are dealing with higher-up civil servants who feel that they have nobody to go to because those mostly to blame are Ministers.
After all, what was the attack which was levelled against Ponting? It was the fact that he had divulged something regarding the alleged behaviour of the Prime Minister. Where Ministers are involved, one has to look to higher grade civil sevants for possible assumption of responsibility for the national interest. I still believe that there must be something higher than the staff counsellor whom we have at present to whom the higher grade civil servant can go if he has serious problems with his conscience, his sense of honour and his responsibility. I am sorry to intrude on the Committee but I do not believe that many Ministers have had the experience of having sailed near the winter wind in trying to deal with winter emergencies.
§ Lord Renton
The defence proposed in this amendment overlaps with the public interest defence which was the subject of a long discussion at the opening of our Committee stage. This amendment can be dealt with more shortly because it provides a defence for a person charged with an offence under this Bill. However, the offences under this Bill are limited to offences relating to security and intelligence defence, international relations and crime and special investigation powers and some ancillary offences which arise out of those principal offences.
Noble Lords who have moved the amendment made it clear that they are concerned to protect civil servants and government contractors and so on in a much wider range of circumstances. We have even had acid rain mentioned and all kinds of threats to public health, but public health is not part of the subject matter of this Bill. I suppose that one could say that germ warfare was the nearest that we have come to threats to public health, but that is not what noble Lords have in mind. Therefore, because this clause evisages a defence to offences which do notarise under the Bill the amendment is one with which we should not trouble ourselves for very long.
§ Lord Belstead
Although I recognise that the noble Lords, Lord Monson and Lord Hemingford, have understandable concerns, we are treading very much the same ground as we trod on earlier amendments. The points that have been put undoubtedly require an answer and perhaps I may say, first, that I hope it is some reassurance to the Committee that the Bill does not unnecessarily inhibit action taken on the matters referred to in the amendment; namely, serious and imminent threats to public health or safety. I hope I can persuade the Committee that there is no need to introduce a general defence for something for which the Bill creates no general offence and which in most circumstances it will 1067 never touch at all. I agree very much with the noble Lord, Lord Houghton of Sowerby, whose appearance in this Committee is most welcome so far as the Government are concerned, that for various reasons this amendment is not desirable.
The Committee will know that there is no offence created in this Bill for the disclosure of information about public health or safety matters. Indeed, in general these are among the vast areas of official information to which, because of the Bill, criminal law on official secrets, will no longer apply. I suggest, therefore, that there is no need to provide a defence where there is no offence. I believe the provision may therefore be based on some misapprehension.
There is an assumption that there is likely to be material which is protected by the Bill which relates to serious and imminent threats to public health or safety and which ought to be disclosed. I want to say a few words about terrorism but for the moment I ask the Committee to recognise that such material can only be covered by the Bill if it comes within the six categories protected under the Bill. It could then only be covered by the amendment if the information identifies a serious and imminent threat which must be disclosed in the public interest but which is not in fact disclosed or acted upon by the responsible authorities. I suggest that that is unlikely.
Even if all these things come to pass in the areas to which this material is conceivably likely to relate, there are clear harm tests in the Bill which the prosecution has to prove. In practice, it would be difficult in the extreme for the prosecution to prove those tests to the satisfaction of a jury in the sort of case that can be envisaged under the amendment; that it to say, an imminent threat to the health of our citizens which can only be averted by an unlawful disclosure. Therefore, I very much take the point made by my noble friend Lord Renton that it is not easy to consider exactly what the offences are to which this amendment refers.
Briefly I pick up the point made by the noble Lord, Lord Hemingford, regarding foreign confidence. I ask the Committee to remember the scope of the new clause. It relates to information about a serious and imminent threat to public health or safety. I think the Committee will agree that it would be wholly unreasonable for another state or international organisation to provide us with information of such a kind—an imminent threat to public health which ought to be disclosed—and then expect us to keep it to ourselves. In practice they do not do that. No government would agree to deal with such information on that basis.
The noble Lord, Lord Monson, raised a question of defence in relation to this amendment. It would only be an offence under the Bill to disclose defence information if the tests of harm set out in Clause 3 are met. The prosecution would have to persuade the jury that a serious and imminent threat to the health or safety of the citizens of this country could not be revealed without, for example, damaging the capability of our Armed Forces. Again, I feel that that is something which could not be met because one has to get past the harm test.
1068 There is one area of public safety which I think is relevant to this amendment which must be mentioned; that is, information about terrorist activity. Surely the right thing for someone who is aware of a serious and imminent terrorist threat is immediately to bring it to the attention of those responsible for deciding what action to take. It cannot be sensible—and it has not been suggested by noble Lords who support the amendment—to enable someone to make an unlawful disclosure of such life and death matters off his own bat when he may not have all the facts and cannot properly assess the best course to take. This must be left, in this particular area of terrorism, to those responsible if lives are be be protected.
I do not intend to return to the points of principle which the Committee discussed yesterday in relation to a different form of public interest defence except to confirm that those points remain applicable to this new clause as I believe they did to the earlier one; namely, on this side of the Committee we do not believe that the criminal law of official secrets can reasonably require juries to balance such undefined concepts as benefit or, indeed, damage to the public interest. We do not believe the law should permit damage knowingly to be done to the interests properly protected by the Bill.
The risk with this amendment is that irresponsible, ill-judged and highly damaging actions might be taken by people encouraged by this provision which would not increase public safety but which would leave the criminal courts with the nearly impossible task of balancing uncertain and conflicting considerations well after the damage has been done. Therefore, on that basis and with the assurance that the amendment addresses areas which in the main are not in any way covered by the Bill, I hope that noble Lords will feel that they do not need to press the amendment.
§ Lord Monson
The ministerial experience of the noble Lord, Lord Houghton of Sowerby, in a bleak mid-winter 40-odd years ago was extremely interesting, but I am sure he will agree that it has nothing to do with matters of public safety, which is what the amendment covers. As to the noble Lord, Lord Renton, to whom I always listen with great interest and with whom I so often find myself in agreement, I was a trifle disappointed that he appeared to be dismissive about public health and safety and, in effect, argued that considerations of good relations with foreign countries, for example, should take priority over matters of public safety. I hope that I have not misunderstood the noble Lord and if I have I apologise.
I listened with great care, as I always do, to the Leader of the House. Again, the question comes back to whether Ministers will invariably behave as they ought to. Will they invariably put public safety above considerations of avoiding offence to a foreign country? If one could be certain that they would invariably do so there would be no need for this amendment. However, with the exception of the noble Lord, Lord Houghton, there has been a certain amount of silence on my right, to put it mildly. I 1069 should like to read carefully what the Leader of the House said and possibly return to this matter at a later stage. For the moment I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clauses 9 to 11 agreed to.
§ 7 p.m.
§ Lord Thomas of Swynnerton moved Amendment No. 40:
§ After Clause 11, insert the following new clause:
§ ("Disclosure of information.
- (1) A person who is or has been a member of the security and intelligence services or who has been notified that he is subject to the provisions of section 1(1) above may, only if he has obtained the consent of the Secretary of State, publish, or disclose for the purpose of a publication information which is or has been in his possession by virtue of his position as a member of those services or in the course of his work while the notification is or was in force.
- (2) The Secretary of State shall not withhold his consent under subsection (1) above if he is satisfied beyond reasonable doubt that the publication can take place without —
- (a) endangering national security; or
- (2) causing harm to the work of the security and intelligence services or any part of them; or
- (c) otherwise being contrary to the national interest.").
§ The noble Lord said: This amendment was originally drafted by my noble friend Lord Bethell who unfortunately is not able to be here today. I should like to say to begin with, as I said on Second Reading, that I think the Government should be generally congratulated on this liberalising Bill. The Opposition were a shade churlish in their general approach to the Bill at that stage.
§ I declare an interest since, if this amendment is incorporated into the Bill, I might benefit because at sometime in the future I might wish to write an historical work that drew on some of the works that might themselves have been published in consequence of this amendment. As the Committee will be aware, the amendment is extremely modestly phrased. It merely seeks to formalise what I believe has been a recent practice. In the past this practice has enabled some remarkable memoirs to be written. I do not refer to those written by Ministers, though, as a matter of fact, they do come into the category that is considered here, since, as we have been reminded, as regards this Bill Ministers are considered to be Crown servants. I am speaking of those who are members of the services specified here.
§ In the past that procedure has enabled books to be written by, for example, Sir Paul Dukes, Mr. Montague Woodhouse, Sir Robert Bruce-Lockhart, Sir Percy Sillitoe and by my right honourable friend Mr. Julian Amery, who is still a Member of the other place. Those books have been published. My right honourable friend Mr. Amery pointed out in another place at the Second Reading of this Bill that some of the books may be regarded as actively inspiring. I agreed with him when he said that the memoir of his service by Sir Paul Dukes was a really inspiring book and that it might serve as a kind of recruiting station for those who wish to join one of those services.1070
§ It may be said that it is undesirable to spell out in a legal document a practice that is known to have worked well in the past. I believe it is correct that one of the purposes of this Bill, as it is one of the purposes of the Security Service Bill which is also proceeding through Parliament, is to regularise procedures and institutions whose basis in the past was founded on custom and whose discipline was based on loyalty. There is also the fact there is just an indication from reading the debates relating to this Bill in another place—I am looking at the statements made by the Minister of State at the Home Office and by the Home Secretary—that the Government might be contemplating a slightly more restrictive attitude than they had displayed in the past. Understandably, no doubt, they were influenced by the Spycatcher case. I believe that this point was made by my right honourable friend Mr. Julian Amery in another place in his speech at the Report stage of the Bill on 22nd February at cols. 1021 and 1022 of Hansard.
§ Others may feel that the circumstances that this amendment envisages are already adequately covered in the Bill by the frequently used phrase which implies that it is all right for any information to be revealed if lawful authority has been given. The amendment goes further than that, because it defines in what circumstances lawful authority should be given. It states specifically that it should be a decision of the Secretary of State. If necessary it could be a political decision. Under the terms of the amendment, it will be seen that the Secretary of State, if he felt it essential, could stop practically any publication if he thought fit. However, the amendment obliges him to think fit.
§ I have one or two additional points to make. It is assumed that it is likely that in the future some public servants who have served in these organisations and agencies or Ministers or others who have been in touch with these agencies, may wish—once the events in which they have participated are over—to write about their work and their achievements or perhaps to contribute to the works of others who are studying or working on the period.
§ I believe that some Members of the Committee may say that that should never happen. I suppose that might be the case in an ideal world but the fact is that this is not an ideal world. Furthermore, I am not at all sure that in an ideal world it would be desirable to refrain from mentioning such activities. In a really ideal world it would not be necessary to have a security or intelligence service at all, but that is unlikely ever to apply. I have the feeling that such prohibitions as were looked upon as generally necessary as regards even the mere existence of these organisations probably had an effect contrary to the purpose of such prohibitions. They probably stimulated an unhealthy interest in them. The fact is that it is because of unlawfully leaked information that so much is now known about the history of the security and intelligence services of the past generation. By a most bizarre twist, I suspect that the average reader of the Sunday press probably knows more about those departments of state than any others. I do not believe that the departmental arguments in the Department of Education and 1071 Science are anything like so well known as those that seem to have occurred in the security services in the 1940s and 1950s.
§ It might also be said that a blanket ban on all discussion about work done in these services, however long ago, might diminish the humanity of those who worked within them. Again, my right honourable friend Mr. Julian Amery in another place devoted a passage in his speech at the Second Reading to that point. It was a good and in many ways a moving speech and I recommend Members of the Committee to look at it.
§ I believe also that it is fair to point out that interest in the work of these organisations is not always sensation-seeking. Sir Alexander Cadogan remarked that intelligence is the neglected dimension in the history of foreign policy. I believe that he said that in 1939. It has certainly been even more the case since 1945. The fact is that there is likely to be historical interest and concern about the role that these services have played in the formation and enactment of policies once those policies are no longer a matter of current politics.
§ There is a third point which is that our actions in these matters have to be taken into account against the fact that other countries, including countries with whom we are extremely intimate—such as the United States—have different practices and their publications may well affect our own judgments on these matters.
§ I want to say in parenthesis that I should like to see a time specified after which it would be possible for historians to examine and scrutinise the papers of these services, just as they do with the papers of other government departments. It may well be that 30 years would be too short a period; it may be that 50 years would be the appropriate period—I do not know. But at least there would be a single time limit.
§ The argument which is given against access for historical purposes to such papers of the past is that that would be an admission that intelligence and security are necessary in time of peace. But of course by this time everyone knows, and indeed almost everyone accepts, that intelligence and security are as necessary in time of peace as they are in time of war. Probably most people recognise that since 1945, and perhaps indeed since 1917, peace in relation to one great power has been a very relative term. In the end, historians will, whatever is decided on these matters, wish to make judgments on the issues concerned and indeed will do so. They will wish to pay tribute to work which is well done and, in their own way, to blame that which is not well done.
§ As all noble Lords are aware, the poet Shelley thought that poets were the unacknowledged legislators, and I have no doubt that many noble Lords will feel that historians are the unacknowledged magistrates on these occasions. I beg to move.
§ Lord Dacre of Glanton
I put my name to this amendment, which was drafted by my noble friend Lord Bethell and proposed by my noble friend Lord Thomas of Swynnerton, because I believe that, if it were adopted, it would be helpful not only to those 1072 blameless writers who might wish to add a little to the historical record, as Cabinet Ministers and others do, but also to the Government themselves, because the present blanket veto has been stretched too tight so that certain splits and holes have appeared in the blanket through which moths of different sizes and kinds fly out, or will fly out, in different directions.
I can envisage four such holes or moths. There are the great big powerful moths like Cabinet Ministers. I remember that in the last war the late Lord Norwich, Mr. Duff Cooper as he then was, was for a time Minister in charge of security. In that capacity he naturally came to know the details of an operation which we at that time called Operation Mincemeat. He took advantage of this fact after the war to authorise himself to write a book about it, which caused great indignation in the security services and I was credibly informed that the question of prosecuting Lord Norwich was seriously considered. But it was decided that there was a certain jeopardy in this and as an alternative it was decided to authorise Mr. Ewen Montagu, who, as a naval officer, had taken part in organising the operation, to write a corrective work instead.
Then there are the small moths who merely fray the edge of the blanket, people who do not write specific books on intentions but perhaps, in writing memoirs, histories or even articles, touch lightly on the corners of the subject. They, too, of course come under the ban. Then at a lower level in the bed there are those sedentary wingless moths who do not come out through any of the holes, but whisper through the holes to outsiders who hitherto have been inaccessible to the ban, but under the new liberal measure will of course be equally liable to prosecution. Finally, there are bold, strong, migratory moths who have the wing-power to fly off to Tasmania. All these lacunae weaken the case for the prosecution.
The Home Secretary has stated in another place that authorisation will be rare and given only in exceptional cases, and that the Government must take action to enforce the duty of confidentiality; that is to say, the Government must prosecute and will not permit. That is much too rigid and quite unnecessary. It would be self-destructive. It also creates great difficulties for the perfectly honourable and reputable people who may apply for permission.
There was a particular case a few years ago—a rather shocking case, in some ways, because it concerned the late Mr. Gordon Welchman. Mr. Welchman, whom I knew very well in the war, was one of the cryptographers at Bletchley; one of the greatest of British cryptographers. We owe an immense debt to him. He was one of those who played a major part in the deciphering of the Enigma machine. He wrote an article for a periodical which I mentioned when speaking to another amendment yesterday. This excellent work, which I recommend—I am acting as a sort of advertising agent for it—was called Intelligence and National Security and much of it was written by former members of the intelligence services.
As I said, Mr. Welchman wrote an article for the periodical and as he lived in America he asked the 1073 editor to clear it with the Ministry of Defence. The editor wrote to the Ministry of Defence and the Ministry wrote back to the editor saying that no deletions need be made to the article. When the article was published, poor Mr. Welchman received a letter which I can only describe as pompous and censorious from the director of GCHQ, a letter which has since been published. I think one can agree with the colleague of Mr. Welchman who described it as a prime example of the lengths to which GCHQ's paronoia about the preservation of ancient secrets will carry them.
Paranoia and ancient secrets—these are the two dangers. Paranoia is the danger and it is the antiquity of the secrets which makes so much of the implicit illiberalism which is part of this otherwise liberal Bill, so counter-productive. The official who wrote that letter seemed to be quite unaware of the rapidity of change in the technology of intelligence gathering. In 10 years, in 20 years and certainly in 30 years the whole technology has changed and the secrets of the period of the last war are as ancient as the secrets of the Napoleonic war. There is no reason at all why half of them should not be published.
The technology of intelligence in fact changes very much quicker than the minds of the officials. I believe that no harm would come if we adopted the amendment; positive good would come, in particular because of the last paragraph in which we suggest that it should be the rule that members and former members of the intelligence service may do this. They do not have to go grovelling on their knees to obscurantist officials. There is a right which they have as citizens to write if they want, provided they obey the rules. They will obey the rules if the rules are made sufficiently liberal, and nothing will be lost.
Like my noble friend Lord Thomas of Swynnerton, I should like there to be a 30-year rule—it need not be 30 years, it could be 25 years, it does not matter—so that those ancient secrets can be published. Most of them are known. As Sir Lewis Namier once said, most secrets are in print if you know where to look for them. Most documents are available. Some documents which are inaccessible in the Public Records Office, all reference to them deleted from the index, are in the House of Lords Library and can be read by any researcher who wishes to do so.
I urge noble Lords to consider favourably this amendment. I think it will do no harm to anyone and will in fact make the liberal Bill which we are discussing easier to enforce.
Lord Home of the Hirsel
After some years away from responsibility in such matters, I may be a little rusty as to the procedures in the security services. My first reaction to my honourable friend's amendment was that it was unnecessary because it very closely represented what actually happened. In fact, what happened in the well known case to which I referred on Second Reading, that of the publication of Sir John Masters's book The Double Cross, was that all the procedures available were gone through and a satisfactory result followed.
1074 Judgment on such matters in those days and maybe now, was left to the good judgment of the Secretary of State, with the Prime Minister in reserve. Incidentally, the name of the Prime Minister is not mentioned in the amendment.
My doubt, rather anticipated by my noble friend, is whether it is wise to try to formalise such matters in the language of a statute, as my noble friend does in the amendment in subsection (2). Perhaps the Leader of the House will agree—I hope he will—to consider this matter between now and the Report stage. I am bound to say at this stage that I should prefer, in what are bound to be very exceptional cases, that legislation should not try to place conditions on the judgment of the Secretary of State or, at the end of the day, of the Prime Minister. I think that most members of the secret services would prefer that informality to the statute language which is proposed.
Anyone listening to this debate over yesterday and today might well have been left with the impression that members of the secret services consisted of a lot of people waiting impatiently to tell their story, to reveal their secrets, and that they were discontented with their lot. Judging by the 10 years in which I had to deal with these matters, I must say that is a caricature of the reality. Those people choose their profession with their eyes open. They gel. a kick out of practising their profession. They have a strong vested interest in secrecy, for the best of reasons: that careless talk, let alone a leak, may cost a life. I have no hesitation in saying that they have no sympathy with somebody like Mr. Wright, whose revelations are regarded as a danger to them and to their own security. In my experience the secret services are manned by men and women who are serious, intelligent, dedicated and patriotic, who take pride in the responsibility placed on them of protecting the nation's security. We must be extremely careful in Parliament not to make their task more difficult and make them more vulnerable.
I hope that my noble friend will look sympathetically at the amendment, although I hope he rather comes to the conclusion, as I do, that it is better that there should be less formality than is proposed.
§ Lord Grimond
The Government will have heard the arguments put forward by the noble Lords, Lord Thomas of Swynnerton, and Lord Dacre of Glanton, who spoke as eminent historians and with wide knowledge of the subject that we are discussing. I hope they will also have read the speeches of Mr. Amery, Mr. Aitken and others in the House of Commons so I shall not repeat the arguments which must be well known to the Government by now.
I would emphasise not only that there is a strong historical reason for accepting the amendment, but that it is highly in the general public interest. It is very desirable that the public should know about our successes in the past. It is desirable that they should have a full picture of how our affairs were conducted. As has been said, much of the actual technology would be out of date; but, nevertheless, it would be of great interest. It is particularly important because those in these services are naturally silent when they are serving; and, after they have retired they should 1075 be entitled to write memoirs so long as they are not damaging. I would have thought that 30 years, which has been suggested, would ensure that no great damage would arise. However, there is the well established custom that any such memoirs must be submitted for approval. That seems to have worked and I do not quite understand why it is being given up, if it is being given up.
It has been alleged that the Wright and Cavendish books were both offered to the Government for vetting and that they refused to accept or even to look at them. If they had done so it seems quite possible that we should have been saved a very great deal of trouble and ignominy in the past year. I should like to know whether that is true; and, if so, why the Government put a blanket veto on those books. I should also like to know whether the present rule would mean, as has been suggested, that Bruce-Lockhart's book could not have been published and, indeed, that many of the autobiographies of Prime Ministers could not now be published. In fact, I should very much like the Government to explain what, in their view, the position would be if this Bill becomes an Act, because it seems to me from reading the proceedings in the House of Commons that that it is far from clear.
The Minister of State in the House of Commons in December went to considerable trouble to explain the present procedure, clearly indicating that the procedure was still in use. That was the procedure for submitting works for examination and some right of appeal if they were turned down. He ended by saying that the sole criterion for authorising publication was whether the publication of a particular piece of information would jeopardise national security directly or indirectly. That clearly implies that if it is not so damaging to national security, it can be published. That was at least understood to be the position until the Wright and Cavendish experiences. However, I am now told that even a book by Sir Michael Howard, a Regius professor—at least I think he still is a Regius professor—which I understand was encouraged, if not contracted for, by the Government, has been held up. I can hardly believe that fact and I look forward to hearing whether the Government will deny it.
However, later in the discussions in another place the Secretary of State appeared to say that there is now a complete embargo on any writings by members of the intelligence and security services about the information which they accumulate during their career. When he was asked whether Prime Ministers, for instance, would be allowed to publish their memoirs, he said that the present situation would continue under the law.
Now what is the law? Is the law that no such publication can take place? I say that because certainly that is what he plainly inferred later in his speech when he said that "there is no expectation of a right to publication even hedged about with conditions." I am not quite certain whether by "a right to publication" he meant actual publication. However, there seems to be a great deal of evidence that the Government changed their attitude between 1076 the Second Reading of the Bill in another place and the later stages. Now we are indeed in danger of having a blanket veto on all such publications by members of the services.
It may well be that the old system should be tightened up, that more discussion should take place, and so on. However, I cannot believe that that is right; I cannot believe that it adds anything to our security. Indeed, I think that it will do considerable damage, and probably has already done so in regard to the Wright and Cavendish cases. No one can be satisfied with the handling of the Wright case, and surely we cannot continue with the present situation.
The noble Lord, Lord Home, suggested that we do not need this provision written into a statute. Were it not for recent experience I should agree with him. If it were the case that the present custom could continue without any trouble, I do not think that we would need a statute. However, there seems to be a great deal of evidence from the Bill itself and from what was said in another place that it is in fact the Government's intention to impose an absolute blanket veto. But, however many holes there will be in the veto, that veto will be the law.
I must dissent from the view constantly expressed by the Government that we need not worry about this sort of thing because the Attorney-General will put it right. He is a sensible man and he will not enforce the law. That seems to be a most extraordinary argument—that we should have to rely on the Attorney-General not to enforce the law. Surely we should draft a law which is enforceable if necessary.
Therefore I hope that the Government will either assure us that this new clause is unnecessary—that we can go back to the assurances given by the Minister of State and disregard the speeches made by the Secretary of State, and indeed parts of the Bill itself—or that they will accept the clause, which to my mind can do nothing but good to the services, to the public, to the writing of history and also to the incomes of future Prime Ministers.
§ 7.30 p.m.
§ Lord Harris of Greenwich
I wish only to make a few observations, particularly in relation to the American experience, because I think it is desirable to look at the question as to how such matters are now handled by the Central Intelligence Agency. This organisation obviously carries within it far more secrets than are possessed by any British intelligence organisation. I shall do so, if I may, by referring to one particular case, that of a Soviet defector called Yuri Nosenko. He went over to the Americans in 1964. He gave the CIA a great deal of extremely valuable information. Subsequently, however, he was questioned about some possible link between Lee Harvey Oswald, the man who murdered President Kennedy, and the KGB. Later the then head of the counter-intelligence branch of the CIA, Mr. Angleton, acting on the basis of information which he had received from another defector, Mr. Golitsyn, came to the conclusion that Mr. Nosenko was a KGB plant. Then without the knowledge of the head of the CIA, he created a small prison for Nosenko at a secret base outside Washington. This 1077 unhappy man was kept there for 1,227 days. On 292 of those days he was questioned. Sometimes he was interrogated for periods of 24 hours without a break, and the guards were forbidden to talk to him.
I think it is interesting to look at this case for one particular reason; namely, the way in which the matter of the conduct of the CIA counter-intelligence branch was dealt with in the memoirs of the former head of the CIA, Admiral Stansfield Turner. It seems to me in a matter of this sort, where major issues were involved and where it was said by Admiral Stansfield Turner, among others, that on this occasion the CIA had behaved as ruthlessly as the KGB, that it was altogether right that it should first of all be exposed to severe criticism, as it was, and then analysed by the man who subsequently became the head of the agency.
Can it really be argued by anyone that the CIA has been weakened as a result of the revelations about this particular episode and the way in which CIA training and operational procedures have been subsequently changed to avoid any repetition of such conduct? Surely the reverse is the case. Public confidence in the United States grew to the extent to which it was made quite clear that such improper behaviour would not be tolerated in the future. There was honest exposure of the whole situation.
However the Bill is changed in the future, it seems to me to be inconceivable that a former head of MI5 or MI6 would in fact be allowed to write such a frank book. However, it is right to look at the question because in the light of recent events it seems—to quote, I think, the noble Lord, Lord Dacre—that the idea of maintaining some form of blanket veto over all memoirs by former officers of MI5 or MI6 simply will not work. That fact has been recognised in the United States. One of the principal reasons for that being the case is the existence of the first amendment to the Constitution. But what happens now in relation to former officers of the CIA is that they are required under the terms of their contracts to submit their books to the agency before they are published. Indeed, I think that there has only been one case where a former employee of the CIA has broken his contractural obligation, and that concerned Mr. Frank Snapp in 1978. That system appears to work with considerable success.
I must say that I find it exceptionally difficult to understand how in the light of the experience of the CIA it can be seriously maintained that the amendment moved by the noble Lord, Lord Thomas of Swynnerton, is objectionable. In my view it is far more limited and it gives far greater power to Ministers than is the situation is the United States. It seems to me that the Government's present position in trying to impose a blanket veto has been demonstrated to be entirely ineffective in this country. I suspect that it will be shown to be ineffectual in the future if they persist with that policy. The Committee has before it a moderate and reasonable proposal which the Government would be wise to accept.
My noble friend Lord Thomas, with his distinguished and academic background, has highlighted the natural and historical interest which 1078 writers have in writing about such matters. It has been a subject which has always caused interest, and my noble friend was right to have introduced the amendment in such a moderate and understanding way.
I enjoyed listening to my noble friend Lord Dacre and following his analogies of moths whispering through holes to outsiders. I found that that extended one's imagination considerably, but he made his point only too clearly.
By the amendment we are inviting the Committee to approve a provision relating to the disclosure of some of the most senstive information relating to the security of the nation and to adopt a presumption that that kind of information may be published unless the Secretary of State can show good reason otherwise. It is fair to point out that that is not the approach which we have taken in Clause 1 to the unauthorised disclosure of security or intelligence material by members and former members of the services or by notified people, for good reasons. I do not believe that it would be sensible to take a different approach in respect of full-blown publications.
The noble Lord, Lord Grimond, said that the public should know how these things operate. I have a different view from that of the noble Lord. I do not believe that it is right that the public should know how all our security and intelligence services operate and how information on national security should be portrayed.
§ Lord Grimond
I must have been extremely difficult to understand, even by my standards. I was talking entirely in the past tense—20, 30, 40 or 50 years ago. Does the Minister really believe that it is vital that we should know nothing about how security ever operated in the whole of history?
§ 7.45 p.m.
The noble Lord, Lord Grimond, is well aware that the whole concept of those who join the security and intelligence services is that they do so knowing full well that they keep what secrets they have and do not divulge them. I shall come later to whether that should be done after 20 or 30 years.
The new clause creates a presumption for and, let us be fair, a pressure towards disclosure which is frankly inconsistent with the provisions contained in Clause 1. The new clause sets up a special procedure to facilitate the publication of information by members, or former members, of the security and intelligence services and by notified people. We are not talking only about retired members of the services, to whom the noble Lord, Lord Grimond, referred. The new clause also covers serving members. We are not talking about those people publishing their memoirs. We are also talking about them assisting a third party to write about the services. We are not just talking about the authors of academic or historical works, however distinguished and respectable they may be We are talking about anyone who wants to publish anything about the services. We are creating a system and a presumption which would wrongly, and I think unfairly, 1079 encourage members and former members of the services to embark upon books about their work. Not only that, it would also leave them open to pressures from people outside the services to discuss at least the possibility of assisting them in producing their own detailed books about the work of the services.
The amendment makes it clear that information can be given, and publications can be made, by a member or a former member of the services or a notified person provided only that the consent of the Secretary of State has been obtained. I believe that my noble friend said that the Secretary of State can stop practically anything. The amendment provides that the Secretary of State must not withhold that consent if he is satisfied beyond reasonable doubt that publication would not endanger national security or cause harm to the work of the services, or otherwise be contrary to the national interest.
I valued the remarks, if I may say so, of my noble friend Lord Home, who said that it is bad to put into statute pressures upon the Secretary of State. I believe that the amendment does precisely that.
The noble Lord, Lord Grimond, asked what law deals with such publication. At the moment, as he is aware, the law on disclosures is Section 2 of the 1911 Act. It relates to the disclosure of official information without authorisation. If Parliament agrees, that law is to be replaced by the Bill under which disclosure of security and intelligence, made without lawful authority, is an offence. The noble Lord will see that throughout the Bill.
The amendment not only permits such works to be reproduced with authority, it makes it incumbent upon the Secretary of State not to withhold his consent other than in specific circumstances; in other words, all the pressures are on for publication. I can understand the reasons why some people wish to do that. I do not believe that it is right. I do not believe that it is right when we are dealing with the nation's secrets and the methods used by the security and intelligence services. I do not believe that the provisions in the Bill relating to authorised disclosures need the additional and separate statutory procedure proposed by my noble friend's amendment.
Members and former members of the services know that they can seek advice. Of course, in the rare exceptional case, authority for proposed publications or other forms of disclosure can be countenanced. There are also procedures for obtaining such authority for others engaged on similar matters within government. There is no need and no advantage insetting out those matters in primary legislation.
I appreciate that my noble friend's objective is to ensure that members of the services might occasionally be able to write for, or contribute to, publications or pass on their information to other authors. I know that he recognises the paramount need to sustain the nation's security and not to make damaging disclosures. My right honourable friend the Home Secretary has made it clear in another place that we 1080 believe that authority for disclosures within that area must continue to be given only in rare and exceptional circumstances. Of course, much will depend upon the circumstances. It will rarely be possible to allow a former member of the services to publish full-blown memoirs about his work in the services. On the other hand, an academic work, primarily on another subject, for example East/West relations, which is such as to contain only incidental references to the author's work, might be a different matter.
The Bill sets out the principles for the disclosure of official information relating to security or intelligence matters. It establishes the principle that such disclosures must be made only with lawful authority.
I do not think that there is any difference between my noble friend and myself on that. It makes it clear that any unauthorised disclosures by members or former members of the security and intelligence services and notified people are bound to be harmful. I venture to hope that my noble friend will agree broadly with that. Having gone that far I do not think it would be right in this legislation then to establish some separate and different procedure with separate and different criteria—indeed separate and different criteria in respect only of the the authorisation of publications, and briefings for publications by those people—and those people alone. I see no substantial grounds for introducing a special legislative provision which will result in encouraging publications and disclosures, particularly when the relevant provisions in the Bill rightly point clearly in the opposite direction.
I would only add that there is nothing in this Bill which prevents a former member of the security services, or indeed anyone else, from engaging in historical studies and writings. Historians, like other writers, come in various shapes and sizes; some of them are in your Lordships' House. Anyone who is involved with this kind of work knows the thrill of disclosing some long-lost manuscript or archival record. Modern historians—faced with such a plethora of published material—may look for a similar excitement from some indiscretion or from some unauthorised disclosure, believing, sometimes wrongly, that the medium is the message and that that message must always be true. But members of the services and those who look to them for information cannot fairly expect routine or regular authority to make disclosures of their work, however upright the cause.
My noble friend Lord Thomas and the noble Lord, Lord Grimond, said, "Why not 30 years?" I listened to that with interest; but the security of the country still depends on much information not being made public, even after so apparently long a period. So the safety of those who are involved at the time, and often also their surviving relatives, is not prejudiced. I could not give the Committee any cause to hope that the proposal would be acceptable.
I think that my noble friend has done us a service in enabling this highly important matter to be discussed. It is a subject which is of intense interest and one which I know is close to his heart. I hope that nevertheless, having inspired the debate and 1081 these considerations, my noble friend will think it prudent and proper not to press his amendment.
§ Lord Harris of Greenwich
Before the noble Lord sits down, would he be good enough to deal with the point I raised in relation to the Central Intelligence Agency? It was a point which I am afraid he has not dealt with in any way at all.
I did not do so because I did not think it particularly relevant to the subject. The noble Lord asked me to deal with a point, but I did not think that dealing with the Central Intelligence Agency was particularly relevant to what we are discussing. We are discussing the future arrangements for the security services and the divulging of any information about them. I have explained to the Committee what the present position is and how the law operates. I have explained how the law will operate if Parliament approves the Bill as it is at the moment. Other countries have their own methods of dealing with their own problems.
§ Lord Harris of Greenwich
Without wishing to cross-examine the noble Earl at length, I should like to ask whether he realises that the procedures which have been introduced in the largest intelligence organisation in the free world are directly relevant to the issues which we have been debating this evening. If the Americans can do that without any grievous damage to their national security of the kind which the noble Earl has been talking about, how can he conceivably say that it is impossible for us to introduce similar procedures?
The noble Lord, Lord Harris, is remarkable for one quality he tries to transpose one particular set of cirumstances or one particular set of laws from one country and say, "Now let us use them in this country". What the Americans do about the CIA, and how they carry out their protection, is a matter for them. I have no doubt the whole series of the ways in which they operate is different from the way in which we operate. We are trying to make it right for this country.
Of course the noble Lord is perfectly entitled to say that he thinks that the American system is better. He may think that the French system is better or that the Singapore system is better. We must try to see what our system is and how it can be best organised. I return to the point that if the noble Lord, Lord Harris, will address himself to Clause 1 of the Bill, it says:A person who is or has been—(a) a member of the security and intelligence services … is guilty of an offence if without lawful authority he discloses any information".I believe that is right, not only from the point of view of speaking but also from the point of view of writing.
§ Lord Elton
In case my noble friend Lord Thomas of Swynnerton is minded to move to a Division—which I hope he is not—can my noble friend the Minister clarify one point? I think he welcomed the suggestion from my noble friend Lord Home that 1082 what was wanted was an informal route which might after all be provided by subsection (1) of the amendment on its own. Then I wondered whether even that was necessary because my noble friend was talking about undertakings in another place about exceptional circumstances providing the occasion for permission. However, Clause 7(1) states:For the purposes of this Act a disclosure by—(a) a Crown servant … is made with lawful authority if, and only if, it is made in accordance with his official duty".There is no question there of there being any waiver of that restriction. I think it would be helpful to the Members of the Committee who have read that and also Clause 1 to be assured that there is an informal route where permission can be given to a Crown servant or a person such as is described in Clause 7(1)(b) if the occasion should arise.
The point which I welcomed in the intervention of my noble friend Lord Home was that he thought it was inadvisable to put too many pressures on a Secretary of State in the statute. I think that he was right over that. The method by which permission is given is perfectly plain. It is that the person concerned must go to the department in which he is employed and seek its permission.
§ Lord Elton
With respect, we do not read it like that. If he has been a Crown servant he can no longer get that clearance because it is no longer his official duty to do anything with regard to the department. He has lawful authority "if"—and these are the exclusive words—and only if, it is made in accordance with his official duty".The provision does not refer to any permission or waiver by the Secretary of State or anybody else.
If a Crown servant wishes to divulge information which he obtained during his time as a Crown servant, he refers to the department from which he came in order to obtain permission.
§ Lord Thomas of Swynnerton
I should like to thank my noble friend Lord Ferrers for his reply to the debate. I, like my noble friend Lord Dacre of Glanton, did not find the discussion particularly encouraging. When in his reply the noble Earl talked about the need to avoid leaks and unauthorised disclosures, I think we were in favour of what he said. But we are concerend that these disclosures should be authorised and be proper.
I feel that when my noble friend examines the course of the debate he will find that the questions put by the noble Lord, Lord Grimond, drew particular attention to what seemed to us to be a discrepancy anyway in the approach between the Minister of State at the Home Office in his speech in another place on the Second Reading on 21st December and the speech he made subsequently, also in another place, on 25th January on the first day of the Committee stage. It certainly seemed to those of us who read the debate in another place that there was a shift in the Government's position. Will the Minister consider that question?
§ 8 p.m.
I apologise. I forgot to answer that point of the noble Lord, Lord Grimond. During the Second Reading debate on 21stDecember the Minister of State gave an account of the procedure which governs the position where a member or a former member of the security and intelligence services is considering writing a book touching on his work in the services. Later, in Committee when the issue was being specifically debated, he made it clear that the policy was that authorisation for such publications would be rare and would be given only in exceptional circumstances. My right honourable friend the Home Secretary subsequently confirmed that policy. I do not think there was any change of heart between those statements.
§ Lord Thomas of Swynnerton
In view of the fact that this amendment was originally put down by my noble friend Lord Bethell, my noble friend Lord Dacre of Glanton and I will not be pressing this amendment to a Division. However, I think that my noble friend Lord Bethell would like to feel free to have the Chamber's judgment on this matter later during the Report stage, if that is appropriate. In those circumstances, I beg leave to withdraw the amendment.
§ The Deputy Chairman of Committees (Lord Alport)
Is it your Lordships' pleasure that this amendment be withdrawn?
The Deputy Chairman of Committees
I did not hear very clearly what the noble Lord said. The amendment, I believe, was withdrawn.
§ Lord Harris of Greenwich
I must say with great respect that the matter is still before the Chamber. The Government Chief Whip has just come in and encouraged the noble Earl, Lord Ferrers, to prevent his noble friend from withdrawing this amendment because the initiator of this proposal could not, as it happened, be here today. That is most ungracious behaviour. I very much hope that the Government will not try to object to this amendment being withdrawn.
I shall try to take the steam out of the noble Lord, Lord Harris of Greenwich. The last thing I wish to do is to cause any dissension about a matter on which he and a number of other Members of the Committee feel strongly. I shall not press the matter.
§ Lord Thomas of Swynnerton
I should say that my noble friend Lord Ferrers did not himself persuade me to withdraw this amendment, but I felt that in the circumstances it would be an appropriate thing to do. It was certainly my decision not to press the amendment on this occasion.
§ Amendment, by leave, withdrawn.1084
§ Clause 12 ["Crown servant" and "government contractor"]:
§ Lord Elwyn-Jones moved Amendment No. 41:
§ Page 10, line 4, at end insert ("provided that he has been notified in writing that he is a Crown Servant for the purposes of this Act;").
§ The noble and learned Lord said: Amendments Nos. 41 and 42 refer to Clause 12(1)(f) and 12(1)(g) which allow the Secretary of State to prescribe classes of employees or office holders who are to be treated as Crown servants for the "purposes of this Act".
§ There is no requirement to notify such people that they have been prescribed. These amendments would require them to have been notified before they could be prosecuted as Crown servants. Perhaps I should add that a person who has not been notified could still be prosecuted for an improper disclosure, but the prosecution would have to be for an offence under Clause 5 of the Bill, which applies to any person and puts a rather greater burden of proof on the prosecution, rather than under earlier clauses which are concerned with offences committed by Crown servants.
§ Amendments Nos. 43 and 44 require employees of government contractors to have been notified that they are such before they can be prosecuted for the specific offences that may be committed by government contractors and their employees. An employee of a firm producing, for example, computer equipment for the Ministry of Defence may have no idea who the ultimate customer is or that he is the employee of a government contractor. Even if not notified, he could be prosecuted for an improper disclosure under Clause 5, but again that would be subject to the more favourable burden of proof in that clause. I beg to move.
These amendments relate to those who are separately prescribed under Clause 12(1)(f) or (g) of the Bill because they need to be treated as Crown servants for the purposes of the legislation but who do not come within the definition of Crown servants given in the earlier parts of the subsection.
There are two circumstances in which someone may be prescribed as a Crown servant. The first is in paragraph (f). This permits a person to be treated as a Crown servant only if the prescription order identifies, first, the body or class of bodies of which he is a member or by whom he is employed, and, secondly, either if he is individually prescribed or if he is within a class of members or employees which is prescribed.
Paragraph (g) is necessary to deal with the position of an office holder and his employees, as office holders are themselves neither members of a body nor employees and so cannot come under paragraph (f). Accordingly it permits the office holder to be prescribed and either all or some of his employees also to be prescribed. Employees cannot be prescribed unless the office holder is himself prescribed.
Clause 14 provides that the power is exercisable by the Secretary of State by order, subject to the affirmative resolution procedure. This Chamber will 1085 therefore have the opportunity to consider, and to decide whether to approve, those whom the Government propose to prescribe. Prescription cannot of course come into effect unless and until it has been approved by Parliament.
The prescription power is an alternative approach to that adopted in legislation which has been passed since 1911 and which establishes various bodies and organisations in their own statute. That legislation has provided that the members and employees of those bodies and authorities shall be subject to Section 2 of the 1911 Act. An example is the staff of the Post Office, for which the Post Office Act 1969 makes such provision. These provisions are to be repealed by Schedule 2 to this Bill. They will be replaced where necessary by the more specific and selective approach in the prescription power in the Bill.
I am not aware of any suggestion in the past that people who are made subject to Section 2 by legislation approved by Parliament need also to be individually notified, or that its lack has ever caused any difficulty. The fact that Parliament has decided the matter in a statute has been thought sufficient. Of course in practice the administrative procedures of these organisations ensure that every employee is aware of the terms and conditions of his service, including his liability under official secrets legislation.
§ Lord Elwyn-Jones
Naturally we shall consider very carefully what the Minister has said. However, in the light of his explanation of what is proposed, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 42 to 44 not moved.]
§ Clause 12 agreed to.
§ Clause 13 [Other interpretation provisions]:
§ Lord Hutchinson of Lullington moved Amendment No. 45:
§ Page 10, leave out lines 33 and 34.
The noble Lord said: This is the interpretation clause. The very first interpretation concerns the words "disclose" and "disclosure". Clause 13(1) concerns the words:
'disclose' and 'disclosure', in relation to a document or other article, including parting with possession of it".
The amendment seeks to remove those wide words from the definition. They have been much criticised already. The Law Society of Scotland has described them as words which have a strained and unnatural meaning. I ask the Minister what would happen if the document is stolen, in spite of every proper precaution having been taken.
§ What happens if it is mislaid by somebody in whose care it has been placed, for example, in a safe which has nothing to do with the person concerned? There is no defence to deal with the situation in which a person parts with possession of the document in spite of having shown reasonable care, or if it happens by accident or with reasonable cause.1086
§ Talking of strained language, throughout the Bill is a "damaging disclosure" now to be a "damaging parting with possession"? Is an "unauthorised disclosure" now to be an "unauthorised parting with possession"? I suggest that that is somewhat nonsensical. The amendment seeks to remove those nonsensical words. I beg to move.
§ Lord Renton
In spite of what the noble Lord, Lord Hutchinson, has said, I hope that the Government will not accept the amendment. The definition as it stands has the great advantage of removing any doubt as to whether parting with possession amounts to disclosure. In some circumstances it could amount to disclosure. Therefore I believe that we should keep it in the Bill.
§ Lord Fraser of Carmyllie
I am grateful to my noble friend Lord Renton for his brief intervention in this matter. Certainly the words "disclose" and "disclosure" take their natural meaning; that is, one of revealing information to another person. That is perfectly sufficient when one is dealing with information which can be imparted by word of mouth. But, as those who have considered this Bill will appreciate, the disclosure offences in the Bill also relate to documents and other articles. One can disclose a document by putting it in front of another person and allowing that person to read it. Equally one may also hand it over without explaining its contents, or one may disclose it, as it were, at one remove by sending it through the post in a sealed envelope; or it may be that the article is, say, a computer disk or a detailed model of a new weapons system which again is handed over or passed on. Are all those actions, strictly speaking, disclosures? The purpose of the provision in Clause 13(1) is to make it clear that for the purposes of this Bill they are, as they clearly must be.
I can tell the noble Lord, Lord Hutchinson, that I am aware of the points that have been made by the Law Society of Scotland. I hope that I can reassure him that it is not intended—and I do not believe it is a proper construction of this provision—to require that inadvertent disclosure should be covered. Someone who was carrying a document and was assaulted and robbed of the document would not be regarded as parting with possession. That situation would not give rise to any criminal offence under the terms of the Bill. Given the type of documents and the various items that could be passed on and disclosed at one remove, it seems to me that, as my noble friend Lord Renton has said, it is an appropriate definition to have in this Bill.
§ Lord Hutchinson of Lullington
The noble Lord says that losing the document, the document being taken away or the document being mislaid would not amount to disclosure within the definition. He says that at the Dispatch Box. However, this is a word which will have to be interpreted in a court of law. With the greatest possible respect, I see no reason, on the basis of the face of the Bill, for being able to take that view. To put a document in a brown envelope and send it to someone or to place it before them in a court of law would be regarded as 1087 disclosing it. It is entirely a question for the court to decide. Was that disclosure or was it not disclosure? That is what a court would have to decide without those additional words. In every case one would say, "It was put in an envelope, it was placed before someone, is that disclosure?" The jury would say yes or no. As the Bill now stands the jury would be told that disclosure means parting with possession, full stop. There could be no interpretation.
However, there we are. At this hour of the night I shall not pursue the matter. It may well be that we shall return to it. I should be most grateful if the noble Lord would have another look at the matter, particularly having regard to the Law Society of Scotland's observations. In those circumstances I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 13 agreed to.
§ Remaining clauses and schedules agreed to.
§ House resumed: Bill reported without amendment.
§ House adjourned at sixteen minutes past eight o'clock.