§ 3.26 p.m.
§ Report received.
§ Clause 1 [Security and intelligence]:
§ Lord Mishcon moved Amendment No. 1:
§ Page 1, line 5, at beginning insert ("Subject to the provisions of section (public interest defence) below,").
The noble Lord said
My Lords, I wish to speak also to Amendments Nos. 2, 8, 12, 14 to 17 and 25. The amendments revolve around the public interest defence. That defence has reached its last ditch at the Report stage of the Bill.
Perhaps I may remind your Lordships of the wording of Clause 1. Your Lordships will see that it is an absolute offence, without a necessity to prove 699 harm, if the prosecution can show that someone has been,a member of the security and intelligence services; or a person notified that he is subject to the provisions of this subsection".I ask your Lordships to remember these words:without lawful authority he discloses any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as a member of any of those services or in the course of his work while the notification is or was in force".With moderation, in Committee the noble Lord, Lord Jenkins of Hillhead, moved an amendment which was different from that which came before the other place. He did so in the cause of public interest, if I may use that abbreviated phrase. He sought to get rid of all the mischief that the Government had alleged existed in those amendments which came before the other place. They were supposed to be vague. They had, so the Government said, a great inherent defect. The great inherent defect was that anyone might think that something improper was going on and then divulge a secret of the intelligence service. All he would have to do if the amendments went through would be to show to the court that he reasonably and honestly believed that something had gone wrong. He might be mistaken, said the Government, but, there, the secret had been revealed. Great harm had been done.
Some of us got together with the noble Lord, Lord Jenkins, to try to cure those defects. At Committee stage we brought before your Lordships what we thought would cure all those evils. First we said, "We'll get rid of the uncertainty. The defence will have to prove that some mischief has been done, that some gross, serious misconduct has taken place". It had to involve fraud, crime, abuse of authority or neglect in the performance of official duty.
Secondly, there had to be a balance shown in favour of the disclosure as against any harm that might be done. With great ingenuity the Government found fault with that. The noble Lord, Lord Belstead, the Leader of the House, said in a memorable speech that he could not accept those points in the amendment to which he drew attention. Perhaps your Lordships will forgive me if I remind the House of the chief points that were made by the noble Lord, Lord Belstead. They are to be found at cols. 929 and 930 of our proceedings on 3rd April:I ask the Committee to consider most carefully whether a proposition can really be accepted that says that such harm can be done knowingly as long as the discloser can claim that on balance—for that is the effect of the amendment—it was in the public interest".The noble Lord made the perfectly fair point that again there was an uncertainty. What was the balance? How could one forecast what the balance was? Was it a certain matter? Was it a matter that could lead to all sorts of misunderstandings so that a disclosure is made and then there is an argument before the jury on balance. That is a perfectly proper and reasonable point.
Then later on the noble Lord said:We are asked to believe that they do nothing about it or nothing that the individual believes, as the amendment suggests, to be effective".700 What the noble Lord the Leader of the House was saying there was that we recognise that under the amendment at Committee stage there would be no defence unless the member of the security service or the notified person had gone through all the established procedures, and the amendment said,and he found them to be of no effect".The noble Lord said:The amendment refers to the procedures having been gone through 'without effect'. I assume—and I do not mean to be sarcastic here—that that means without the effect which the individual judges deem to be satisfactory".As I said this is to be found at cols. 929 and 930 of the Official Report for the 3rd April.
Then there were other references to the point of balance and to what might be inferred from the,crime, fraud or other serious misconduct".It was in deference to those arguments that once again we feel that some—even if it now be a last ditch—public interest defence should be incorporated in the Bill.
We have gone away, we have thought, we have endeavoured to answer each and every point that the noble Lord the Leader of the House made in the speech which was given in answer to the amendment moved last time by the noble Lord, Lord Jenkins of Hillhead. In those circumstances, I ask that your Lordships should kindly turn now to Amendment No. 25 and see how we have tried to deal with the various points that were made by the noble Lord, Lord Belstead. First, your Lordships will note that in subsection (1)(a), the information revealed has to point to,the existence of serious misconduct involving crime, fraud or other gross impropriety".There is no doubt what all that means: it must be serious misconduct involving crime, fraud or other gross impropriety. Those of us who are lawyers and have the privilege of understanding what the eiusdem generis rule means know that it must obviously be gross impropriety which is akin to crime or fraud in the definition of "serious misconduct".
Then we have completely got rid of the balance which worried the noble Lord, Lord Belstead. What the defendant would have to prove is something else, quite apart from the fact that the crime or the gross impropriety had been committed. (If it had not been and it was a gross hallucinaton or he was mistaken, he has no defence.) We get rid of the doubts about balance and so on and having to assess it beforehand, by the words in paragraph (b):in the circumstances the disclosure was necessary in the public interest".The onus is on the defendant. He has to show that the serious misconduct took place and that it was necessary in the public interest for the disclosure to be made.
Then we got rid of the third and last point. The noble Lord, Lord Belstead, said that "no effect" was an ambiguous phrase. With his usual courtesy, he said that he had no desire to be sarcastic, but he thought that those words might be interpreted as being in the mind of the person who discloses and that he had an answer which was of no effect. So in this amendment we deal with that. The discloser 701 must take all reasonable steps, as your Lordships will see from subsection (2) of the amendment,to comply with any established procedures for drawing such serious misconduct to the attention of the appropriate authorities which had unreasonably declined to deal with it".Despite all the other matters the onus is upon him. He must show that the authorities were unreasonable and they must decline to deal with it. They must not say, "All right, we'll think about it and we shall perhaps be writing a letter. They must decline to deal with the matter unreasonably. At the beginning of the remarks which I ventured to address to your Lordships on the amendment I asked noble Lords to remember the words,guilty of an offence…without lawful authority".Another point which the noble Lord, Lord Belstead, with his usual perfect fairness, made, was to cry in aid the report of the noble Lord, Lord Franks. I was glad he did so because on other occasions when my colleagues and friends and I have cried in aid the report of the noble Lord, Lord Franks, we were told that there had been further thought since that report was issued, minds had changed and so on. At least it was nice to hear somebody from the Government Benches saying something favourable to Lord Franks. What the noble Lord, Lord Belstead, did not quote from the report which I wish strongly to quote is what Lord Franks and his committee thought the offence ought to be. I am reading from paragraph 217, which is in heavy black type so there is no mistake about what the noble Lord and his Committee wanted:We propose that it should be an offence for a Crown servant to communicate information to which the Official Information Act applies, contrary to his official duty".That is not,without lawful authority",but,contrary to his official duty".Later on in that paragraph he says:This test will make clear that it is for the prosecution to establish that the communication was contrary to the Crown servant's duty. If an act cannot even be shown to have been contrary to his duty, it would be unreasonable that it should nevertheless be caught by the criminal law".The Bill before your Lordships does not use those words,contary to his official dutyIt says,without lawful authority".I conclude my argument with this example. I do not think it unfair but your Lordships in your wisdom may think of much better ones. Let us imagine an assistant to the head of the security service who finds out that the head of the security service—I am sure your Lordships will never take any remark of mine as attaching to any head of the security service, past, present or future—has wrongly claimed heavy expenses for a journey to Marbella. However, he never went there. He has forged receipts in regard to expenses said to have been incurred for the journey and other matters, and he has withdrawn the money in regard to those expenses. He has endeavoured to ensure that the documents go 702 forward for what is never a detailed audit of the security service through the Minister who declares that the amounts are correct. I believe a broad certification then goes to the Auditor General in such cases.
That personal assistant cannot complain to anyone lower down as he is the personal assistant to the head of the security service. Your Lordships may well remember that in the previous debate on this Bill I quoted from a letter to The Times sent by three former heads of the Civil Service. I shall not read the letter out again, but those former heads of the Civil Service had written to The Times—without talking in terms favourable to a public interest defence, let me say—stating that it was perfectly possible in certain circumstances (which may be unlikely ones) that complaints made within the Civil Service would not take their proper course if certain events were involved. They admitted that.
So this poor assistant cannot go to the very chief to whom he is an assistant to say that the chief's behaviour is dreadful and he has committed a fraud. Therefore, he goes to the counsellor, mentioned previously from the Government Benches. The counsellor says very frankly that he is awfully sorry but he is there to deal with complaints in regard to what happens in disciplinary and other matters and he cannot touch this particular issue. He says that he cannot touch it and does not intend to touch it.
I wish to ask the Minister certain questions in regard to the amendment. I would have liked to give longer notice but I have given him some notice with an apology that it was not longer. I must confess that I thought of the example only as I was travelling to your Lordships' House this afternoon. Let us suppose that the assistant goes to a solicitor and asks to be advised regarding the law. The assistant presents the facts to the solicitor and asks what his duty is. Is that assistant committing an offence when he goes to a lawyer? We no longer have the words that Franks recommended; namely, that such a person was acting "in the course of his official duty". It could be argued that the act of going to a solicitor was the assistant's duty as he had no one else to ask for advice. The words in the Bill are, "without lawful authority". That assistant has no authority from anyone to go to the solicitor to ask for advice. So has he committed an offence? I hope your Lordships will not think me impertinent—I am sure the noble Earl will not think me impertinent—if I say that I do not want an answer stating that the Attorney-General would never prosecute. I am asking whether a criminal offence that we are creating has been committed.
If the assistant goes to a solicitor and says that he has no authority to go to the solicitor but that he wants to tell the facts, has he committed an offence? Further, if the assistant goes not to a solicitor but to his Member of Parliament saying that he does not know what to do and asking his Member of Parliament whether he can be given ad vice regarding who to go to and whether the matter can be raised as a dreadful thing has occurred, public money having been fraudulently spent by the head of the security department, has he committed a criminal offence as he had no lawful authority to go to the Member of Parliament?
703 Let me present a further example of where the assistant does neither of those two things. Let us suppose he walks into a police station and says that a fraud has been committed and that he cannot get any satisfaction as the counsellor has told him that he will not touch the matter. Has he committed an offence if he tells the police inspector what has happened? Unless this amendment is accepted, I can only tell your Lordships—I do so very humbly as a lawyer—that if I am given the answer that the assistant has committed no offence, many lawyers in this land, if the Bill remains as it is, will disagree with that view. If I am told that he has committed an offence, what will your Lordships do except pass this amendment?
§ 3.45 p.m.
Lord Campbell of Croy
My Lords, the noble Lord, Lord Mishcon, has, with his usual clarity, explained very carefully the variations in this new amendment, as compared with the one we discussed in Committee. I had already examined it in detail and I understand what the noble Lord is trying to do. I recognise the effort that has been made to meet arguments that were put in our previous debate. However, I must say that I do not believe that the changes meet the main arguments and objections which were raised in Committee.
There has not been a public interest defence in the past. This provision would introduce one for the first time. So we must ask the fundamental question: is it necessary to have one? I do not believe it is necessary because of the harm tests in the Bill. The amendments that have been proposed on this matter could lead to serious breaches of security.
§ Lord Mishcon
My Lords, I know the noble Lord will not think me discourteous if I intervene. I do not want him to advance his argument on a false premise. There is no harm provision in the clause which I am seeking to amend. Harm does not have to be shown by the prosecution.
Lord Campbell of Croy
My Lords, there is a harm test as regards the subject of the security and intelligence.
Lord Campbell of Croy
My Lords, I shall proceed to our discussion in the previous debate. At that time, the noble Lord, Lord Jenkins of Hillhead, argued that a form of public interest defence had existed in the notorious and unloved Section 2 of the 1911 Act. He suggested, in his speech on that occasion, that my right honourable friend the Home Secretary was trying to ride two horses. He has given himself, I believe, two much more difficult and dissimilar horses to ride at the same time in doing away with Section 2, which is abominated by everyone—I do not believe there is anyone in your Lordships' House who would wish to retain it—but also in claiming that part of Section 2(1)(a) has,constituted a basis for a number of successful public interest defences".—[Official Report, 3/4/89; col. 908.]704 My understanding is that the courts have never accepted that Section 2 provided a public interest defence. My interpretation is that any success in the past by a defendant has arisen from the particular circumstances of the case and the conclusions reached by juries. There has not, in law, been a public interest defence. The Government, to my mind, are not eroding civil liberty in this respect in the Bill. The Government have vastly reduced the amount of official information to be protected in future. They have reduced it to six areas, five of which are to be related to tests of harm. That is a new feature. The sixth, the sensitive area of warrants and interception of communications, already has a special system of investigation and therefore does not have a harm test. The harm tests in this Bill justify the Government in regarding it as a liberalising measure.
The noble Lord has referred to the fact that under this clause members of the intelligence and security services are not themselves able to raise the harm test. The noble Lord, Lord Jenkins, was more concerned about someone who was not a Crown servant. I think that we are quite right to concentrate on that aspect because as has been explained, there are channels through which Crown servants can take up cases of supposed misconduct or impropriety. Those channels include the staff counsellor for the security and intelligence services, a post at present held by Sir Philip Woodfield.
However, as the noble Lord, Lord Jenkins, asked on 3rd April, if a journalist or a private individual is considering making a disclosure or has made a disclosure of the kind which would be covered by these amendments, where does he stand? Without the amendments and the new clause he would have to think very hard before making a disclosure. I believe that with them he might believe that he had a fifty-fifty chance of being absolved. In the event, he would probably be wrong, but serious damage would have been done. Under the terms of the Bill as it stands I understand that where there is a test of harm such a person, having made a disclosure, would have the advantage that the prosecutor would have to prove that he, the defendant, knew or had good reason to know that harm would be done by the disclosure.
I believe that as the Bill stands at the moment that category of journalists or private individuals will not have to rely on the kind of public interest defence which is proposed in the amendments. I do not think that it is necessary to introduce them.
The noble Lord, Lord Mishcon, mentioned an example which occurred to him on his way to the House—but not, presumably, coming from Spain—of the personal assistant to the head of the security service who suspects that a gross fraud has been committed in circumstances which the noble Lord described. That seems to me to be a case that the staff counsellor, Sir Philip Woodfield, would deal with. I shall be very interested to hear what my noble friend says on the subject because I believe that that is the kind of issue which the counsellor should deal with and which he is there to take up. If it does not lie within the scope of his office, I shall be sorry.
705 I should like to point out to the noble Lord, Lord Mishcon, that there could be occasions when a senior member of the security or intelligence service may have to keep an appointment very secret. He might have to leave signs to suggest that he was to be in one place when he was to be in another. The example that has been given is not altogether impossible, but instead of amounting to fraud it would simply be a matter of laying a trail in the wrong direction. That could happen, but it is most unlikely that the personal assistant would not have been in on the plan. If I may say so before the noble Lord intervenes, in that respect I believe that he has produced a rather good example of what might happen.
§ Lord Mishcon
My Lords, the noble Lord is very courteous. I made it absolutely clear that unless the defendant can prove that a crime or gross misconduct has occurred he has no defence. The fact that he genuinely suspected it or the fact that the chief of security was hiding the facts as to where he had been, for a very good reason would provide no defence. It has to be proved that the crime has been committed.
Lord Campbell of Croy
My Lords, I do not believe that there is very much between us. I am simply pointing out the situations which could occur in the security world, where deception has to be part of one's daily work, that could not occur in any other world. I hope very much that that is the kind of case which the staff counsellor will deal with. However, I am not an expert on that subject and I shall wait to hear the answer.
I hope that noble Lords will realise from what I have said that I do not think it necessary to introduce a public interest defence, which did not exist in the 1911 Act and which would be introduced for the first time.
§ Lord Hutchinson of Lullington
My Lords, I support the amendment. I should like to deal first with a point which the noble Lord, Lord Campbell of Croy, mentioned in relation to the public interest and the 1911 Act. He will appreciate that there was a public interest defence in the previous Act. The relevant words of Section 2(1)(a) are that the information has to be communicated to a person other than,a person to whom it is in the interests of the State his duty to communicate it".Those words were used in the Sunday Telegraph case by the defence and they were used by the defence in the Ponting case. In each of those cases the jury acquitted the accused. Those words have never been upheld by the Court of Appeal as including a public interest defence. On the other hand, they have never been interpreted as not including a public interest defence. Nevertheless, on two occasions, and probably more, they have been interpreted in that way by the jury.
I should like to refer to the proceedings in Committee, as the noble Lord, Lord Mishcon, has 706 done. In Committee a number of noble Lords expressed sympathy with what my noble friend Lord Jenkins sought to do. I remember that the noble Lord, Lord Beloff, referred specifically to the desirability in the last resort of preventing what he described as some great damage to the nation by the concealment of a misdeed by a public servant. The noble and gallant Lord, Lord Carver, expressed himself as being very nearly won over by the submissions of the noble Lord.
Your Lordships will remember that at Second Reading the noble Lord, Lord Hunt of Tanworth, agreed that if all established procedures had been exhausted by the civil servant in question, the public servant must act according to his conscience. However, he added that he doubted whether a successful prosecution would ever be launched in such circumstances.
I echo what the noble Lord, Lord Mishcon, has said. The history of legislation in regard to the criminal law is littered with parliamentary observations to the effect that no one would prosecute in such circumstances. Unfortunately, someone always does prosecute.
Some other noble Lords found the wording in the original amendment too broad. The noble Lord, Lord Home of the Hirsel, and the noble Lord, Lord Renton, found the words too imprecise. So too did the noble Lord, Lord Trafford. They believed that a jury would find it too difficult to cope with those words when used by a judge in summing up. I suggest that those words are eminently suitable for a jury trial. Misconduct involving crime or fraud is a perfectly straightforward and simple matter for the jury. The phrase "gross impropriety" is used. "Gross" is a word often used in the criminal law. In summing up to juries in manslaughter cases, judges may ask whether there was "gross negligence". "Negligence" alone is not good enough. The juries must decide whether there was "gross negligence". We use the phrase "gross indecency"; "indecency" alone is not enough. The juries must decide whether there was "gross indecency". It is a perfectly simple question for them to decide here.
On the public interest part of the amendment, as noble Lords well know, judges are well versed in the principles of public interest. Throughout the Spycatcher case, that matter was referred to in the various courts and was laid down authoritatively by the judges. There is no problem in directing a jury on the considerations that they should take into account in relation to public interest.
With regard to all those points, I suggest that the language of the amendment is extremely carefully drawn. It is language that a jury could understand and which the learned judge would be perfectly able to sum up to the jury. On that basis, I sincerely hope that noble Lords who had reservations about the scope and drafting of the Jenkins amendment will feel that this amendment properly provides for the last resort situation for which the law should cater if it is to be respected, as I am sure noble Lords will want it to be.
§ 4 p.m.
§ Lord Boyd-Carpenter
My Lords, the public interest defence has been exhaustively and, one might say, exhaustingly discussed at a number of stages of the Bill, both in this House and in another place. As the noble Lord, Lord Mishcon, rather despairingly put it in his speech, this is its last ditch.
Noble Lords have so far rejected the general principle of the public interest defence, as did another place, because there has been a feeling—I shall enlarge on this point in a moment—that, however appropriate the defence of the public interest might be in most areas of the law, it is inappropriate in this respect because of the special nature of the work of the security service.
The trouble about applying a public interest test in that area is that, in the course of such a test, one may force the revelation of matters whose revelation is damaging to the interests of this country. One may force out—perhaps inadvertently or as a side issue—matters which, from the point of view of this country's security, the Government—indeed, all governments of all parties—would regard as essential to keep secret. I believe that the reason the public interest defence has been rejected again and again is the natural sense of caution which is felt both here and in another place in dealing with those special types of matters where revelation may be immensely damaging to our nation's security. I hope that noble Lords will consider the amendment in the light of that background.
Perhaps I may put the issue to noble Lords in this way. Although the amendment is undoubtedly more restricted, it reflects the high level of drafting capacity of the noble Lord, Lord Mishcon, whose signature I see written all over it. However, it still seems to me to involve a risk in certain circumstances. Perhaps I may give an example of a matter that has been discussed—I raised it myself, as others have done—at previous stages. Let us suppose that, while the British nuclear bomb was being constructed in the 1940s, some of the people concerned had indulged in appalling fraud. Let us suppose that some of the people involved had misappropriated moneys. It could be said that that situation complied entirely with the first part of the amendment in paragraph (a). It could then be argued whether it was necessary, in the public interest, for the matter to be raised. The vital national secret that we were in fact manufacturing a nuclear bomb without the knowledge of other countries, and indeed without the knowledge of Parliament, might therefore be incidentally disclosed.
If the matter were raised and it were pointed out that someone was acting fraudulently in the supply of some of the materials that one needs for the processes of nuclear fission, the information would inevitably come out that we were engaged upon that enterprise. It seems to me difficult to judge whether someone who, up to that point, had known nothing whatever about that being done could form a sensible judgment as to whether it was "necessary"—that is the word in the amendment—to disclose it. One must remember—I say that with due respect to the judiciary—that it is, like the rest of us, completely 708 unaware of many of the activities of the security service. Those activities are known only to members of the service, a few responsible Ministers and particularly the Prime Minister. How are they to judge whether it is necessary in the public interest for that information to be disclosed when they are completely unaware of the background of the matter?
I put that specific problem to noble Lords. Let us suppose that there had been frightful fraud in the making of the British nuclear bomb and that a man who had been involved was genuinely outraged, as most noble Lords would be, by that fraud. Does one say that, because of that occurrence, it might be necessary to give away the whole secret of what the British Government were doing? That is an illustration of the difficulty of legislating in that area.
It may be that I and some of my noble friends are over-cautious in this matter. I venture to suggest that noble Lords on the other side who press constantly for the public interest defence in one form or another are perhaps a little over-courageous. I suggest that this is an issue in which it must be right to err on the side of caution, and that the amendment transgresses that sensible view.
§ Lord Renton
My Lords, there is a general assumption that special defences are always in favour of the accused; but I doubt that assumption, especially with regard to the proposed special defence which I agree is an improvement on the one that we had in Committee.
The assumption in favour of special defences is that, whereas the prosecution has to prove its case beyond reasonable doubt, special defences need only be proved on the balance of probability. At first sight, that looks to be a tremendous advantage, but I must say that, if I were defending someone on a charge on either of the offences mentioned in subsections (1) or (3), I would not welcome the presence of the special defence in the clause.
Perhaps I should put the cart before the horse and first deal with the contents of the special defence itself. Noble Lords opposite will put a very heavy burden of liability upon the accused person, even on the balance of probability. He has to proveserious misconduct involving crime, fraud or other gross impropriety".The burden will be on him to the limited extent that the disclosure was necessary in the public interest. In the case not only of Crown servants and government contractors but also the people mentioned in Clause 1(1):(a) a member of the security and intelligence services; or (b) a person notified that he is subject to the provisions of this subsection.He also has to prove that:he had taken all reasonable steps to comply with any established procedures [and that] the appropriate authorities … had unreasonably declined to deal with it".In other words, he will have to prove that three people, to each of whom he had the right of application, have been unreasonable. That will be a very difficult burden to establish. He must prove that the head of department has been unreasonable, that the head of the Civil Service has been unreason- 709 able and that the staff counsellor, who is a person especially appointed to help civil servants in such cases, has been unreasonable too.
If I were defending, I should throw up my hands in despair at ever being able to prove to a jury that those people, all of whom would probably have been called as witnesses for the defence or prosecution, had all been unreasonable. The danger of these special defences—and I concede that there is one in Clause 1(5)—is that they divert attention from the very heavy burden of proof which lies upon the prosecution. In this case the prosecution will have stringently to prove some matters—they have already been mentioned by my noble friend Lord Campbell of Croy, so there is no need for me to repeat them—which will not be easy to prove. In such a case, if I were defending, I should say to myself: All right, the prosecution will establish anyway their prima facie case and it will have to hold up well enough for the judge to leave the matter to the jury. Then it is for the defence either to call no evidence and rely upon defence counsel's speech, which is sometimes a very effective course, I avow, or to call some evidence simply to deal with the prosecution's case and try to rebut it, or to rely upon the special defence.
I am sure that the noble Lord, Lord Hutchinson of Lullington, and the noble and learned Lord, Lord Elwyn-Jones, as well as other noble Lords who have practised in the criminal courts, will agree with me that once the jury's attention is diverted from the onus upon the prosecution to the special defence which the accused is trying to raise, the jurors, because they are human beings, will find that their attention tends to be focused upon the special defence. Therefore, I believe that the special defence that is proposed here could very well be a boomerang. If I were a member of the Government I am not certain that I would find it unwelcome, but from the point of view of future accused people I doubt whether it will be an advantage.
§ 4.15 p.m.
§ Lord Trafford
My Lords, part of the purpose of this Bill is to protect official secrets. Indeed, much of our discussion has been about what happens after someone has leaked them. However, it seems to me that the noble Lord, Lord Mishcon, would have a much stronger point in putting forward this amendment if this Bill covered as many pieces of information—many of them minor—and such a wide range of people as does the existing Act. It does not.
In fact, under Clause 1 it covers a very small number of people, all of whom have voluntarily joined this particular branch of government and taken on this activity, knowing the score, one might say. It is not a very large number but it consists of people who are specifically involved directly and indirectly (as has been mentioned I think in the comments of my noble friend Lord Boyd-Carpenter) with a considerable amount of potentially damaging information. Such information could come out not as a result of the primary leak but as a result of any 710 subsequent case. It could come out either inadvertently or as a result of some secondary revelation of facts necessary to statements made in court. The major point surely is that now that we have narrowed down the number of people involved and eliminated vast areas of unnecessary government activity from protection under this Bill, it is far less necessary to put forward such points. The essential feature is that the cat would be out of the bag before one ever came to decide whether or not a special defence was necessary or applicable.
In those cases mentioned by the noble Lord, Lord Hutchinson of Lullington, I believe that he is underrating the power of the advocacy concerned rather than relying on the actual intent of the judiciary, who I accept did not give decisions on the matter. It was the power of the advocate and not the nature of the defence that led the jury to come to its conclusions because juries decide the facts of these matters and not the law. So I do not believe that the fact that those particular cases were decided as they were necessarily supports the suggestion that in fact, if not in law, there is such a thing as a specific public interest defence.
Finally, when Lord Hunt of Tanworth referred to this matter in the Second Reading speech that has already been cited, he was not of course referring to members of the intelligence service but to the general civil servants who had something which might be caught by other clauses in this Bill. He was then listing a very large number of things that they can do and courses of action that they can take before they come up, so to speak, against the point taken by my noble friend the Leader of the House; namely, that at the end of the day there is the question of their conscience.
In this clause we are considering the small group of people which has been specifically narrowed by this Bill. It is quite different from that which comes under the existing Act. It seems to me that if we accepted this amendment we should be saying that, whatever damage may be done at the whim of some member of this branch of government, the cat is out of the bag and it would not matter. That does not seem to me to be a cautious or reason able way for this Chamber to proceed.
§ Lord Renton
My Lords, before my noble friend sits down perhaps he would care to correct one statement. He said that the noble Lord, Lord Hunt of Tanworth, was referring only to civil servants. I am not quite certain whether that is so, but in any event the amendment refers to those in the security and intelligence services as well.
§ Lord Trafford
My Lords, I am much obliged to my noble friend. I was trying to make the point that the speech of the noble Lord, Lord Hunt of Tanworth, had already been quoted in aid of the amendment. I was pointing out that he was covering a much wider field in his Second Reading speech. He went all through the question of going to the senior civil servant, to the head of the Civil Service and to the Minister, and so on—a much wider field than is covered by this amendment.
§ Lord Harmar-Nicholls
My Lords, the noble Lord, Lord Renton, has made the main point that I had in mind to raise. However, he did not mention what I believe to be the ultimate point, and it is for that reason that I wish to add to his remarks. I believe that the danger in Amendment No. 25 resides in the last six words:unreasonably declined to deal with it".Part of the conditions that the amendment lays down is that the defence has to show that he tried to comply with the established procedures before drawing attention to serious misconduct. That is fair enough. But the amendment provides that the appropriate authorities had unreasonably declined to do their duty. I believe that the existence of those final six words weakens the confidence that one has in the established procedures. If we want this measure to work, we have to feel that the protection—the established procedures—mean something. However, if in the same Act that virtually sets up the procedures one recognises the possibility, indeed the likelihood, that the appropriate authorities—which covers several people and several departments—could be unreasonable in carrying out their duty, it would be bad legislation.
If we have to accept the amendment, I would rather that the word "unreasonable" was removed. If the defence wish to say that the appropriate authorities had declined to deal with it, I cannot see that that would be casting aspersions on the power and impartiality of the established procedures. The amendment provides that it is possible for that to happen. If one did not think it was possible for it to happen it would not be in the statute. If we wish our legislation to be accepted in all seriousness, the insertion of the words in the amendment, "unreasonably declined to deal with it", raises a danger that we must bear in mind. I make that final point in addition to the detailed explanation on those words that my noble friend gave when he made his contribution.
§ Lord Houghton of Sowerby
My Lords, we can well understand why no government have attempted to amend the Official Secrets Act all these years. Two Acts were passed in the year 1911 that every government since have said should be changed, and no government have done very much about them. One affects your Lordships' House, and the other is the Official Secrets Act.
The difficulty is that when one has a large net that is supposed to catch everything but which catches very little, and one wishes to provide something more specific in terms of legislation and effectiveness, one comes down to the nitty-gritty of drafting the alternative. That is what the Government have done.
The noble Lord, Lord Trafford, mentioned the Home Civil Service. Listening to this debate, most of the hypothetical circumstances in the minds of my noble friends related to the security services. My primary interest is the Home Civil Service. I am quite sure that enough outlets for complaints about what may be going on in the Civil Service exist already and that there is no need to provide more 712 special defences for it. After all, what are we doing? What is all this about?
I was once described by the Law Society as an intelligent layman. I have been trying to live up to that reputation ever since. What are we trying to do? We are trying to keep civil servants from breach of confidence and breach of secrecy, pleading that they have every reason for such breach when we do not believe that they have. If one prosecutes, the decision has to rest with the court. But if we are defining the duty of civil servants we should try to do so by following as closely as possible their experience, to establish what they will recognise as guidelines in personal conduct.
When the noble Lord, Lord Mishcon, was speaking about his hypothetical case of fraudulent expense claims, and so forth, I was uncertain whether the writ of the Comptroller and Auditor General would extend to that murky field of security services. Normally a civil servant who observes fraud going on around him has an easy remedy. He reports it to the Comptroller and Auditor General, whose duty it is to investigate it. He then has his own superior officers. Throughout the debate nobody has referred to the important role of the trade unions in the Civil Service. The trade unions can be used by civil servants who are in difficulties or doubt. I was involved in that for 38 years. Plenty of people came to me with troubles and difficulties about the conduct of people around them. They were seeking means of bringing about a remedy, mostly without having to disclose their identity. That is always difficult. However, if we are dealing with the security services then unfortunately we are entering a very wicked world: a world of sneaks, deceit, cover-up, double dealing, lying, and fraud. Every conceivable sin in the calendar seems to be available to members of the security services, except that of murder. I am not sure that they have not even gone in for that.
I do not think one can apply a civilised code of behaviour in a service which is engaged in such underhand work. I regard the secret services as an affront to human conduct and dignity and to our civilised society. I think it is a great pity that we take part in them. We might do far better to get out and retain our self respect. However, again, we are in a vicious circle and have apparently to stay in.
I do not believe that we need to erect more special defences. Unless I am wrong, the fact we specify special defences does not mean that we deprive an accused person of any other defences. He must create his own defence in circumstances in which he believes he has an overwhelming case for doing what he did. If he is before a jury, can he not rely on 12 good men and women and true to see the common sense and justice of the matter? Are we suggesting that there is no justice in the courts unless the defence comes within the special defences prescribed in this Bill? Surely not. In the Ponting case, the jury made its own law and defied the judge in doing so. It made its own justice also. I do not say that I necessarily agree with it, but it happened and I believe that it can happen in other cases.
I cannot see why we are straining so much on this issue. I cannot believe that all the first-class lawyers 713 are on this side of the House and that those on the other side are second-raters. There is a genuine difference of legal opinion. However, perhaps I may say a few words of common sense. Let us leave it at what the Government are providing. It is sufficient to see the real mischief of the Official Secrets Act removed.
Lord Campbell of Croy
My Lords, before the noble Lord sits down, he is quite right to talk about the Home Civil Service. I should like to clear this matter with the noble Lord, Lord Mishcon. With Amendment No. 1 we are discussing eight other amendments, including the new clause, Amendment No. 25, which is the operative one. The other amendments would apply that new clause to the other clauses. Therefore it would cover all civil servants. Clause 1 applies in particular, but not totally, to security and intelligence services. In our discussion, I was speaking to the amendments to the other clauses also.
§ 4.30 p.m.
§ Lord Jenkins of Hillhead
My Lords, the general case for this amendment has been most powerfully and persuasively made by the noble Lord, Lord Mishcon, and by my noble friend Lord Hutchinson of Lullington. I intervene briefly to make a single adjacent point. This amendment is even more tightly drafted than the equivalent amendment that I moved in Committee. I was struck when I moved that amendment by the solidity with which the Benches opposite upheld the importance of secrecy in certain affairs of government.
I have been away for some time and I was even more amazed last Saturday evening when, sitting in a foreign airport, I picked up for the first time for two or three days a copy of the Independent. I read an account of what had happened at Thursday's Cabinet meeting when the Secretary of State for Wales Mr. Peter Walker, having indulged in a rather controversial statement recently, had tried to intervene but had deliberately not been called by the Prime Minister. This struck me as very odd indeed. However, one knows that there can be leaks wholly unauthorised by any official source. In what was a well equipped airport lounge, I also picked up The Times, the Daily Telegraph and the Guardian. I read exactly the same story. This can only happen when there has been what is politely called "briefing" but what might brutally be called leaking from a central official source; in other words, the spokesman for the Government.
It was a most extraordinary affair. I have known leaks from the Cabinet. We all have. Those leaks—even from Cabinets we have sat in—have indicated different views. But to have an officially presented commentary, almost as if it were a sporting event, of who tried to do such at what time, was not called, and why, is something that I have never known in the history of Cabinet government.
I hope that the Leader of the House the Lord Privy Seal, when he replies, will comment on this rather extraordinary state of affairs and that he will reassure 714 us. The thought arises in my mind that there is a certain hypocrisy about a government being very concerned to impose great discipline upon relatively minor officials and yet using leaking on a scale which is unprecedented in our political history when it happens to suit the powers-that-be
Lord Home of the Hirsel
My Lords, the noble Lords, Lord Mishcon and Lord Hutchinson. were right to claim that these amendments are more specific than the original amendment moved by the noble Lord, Lord Jenkins of Hillhead. I have, in one way or another, a good many years of experience of the special and peculiar area of secrecy, as described by the noble Lord, Lord Houghton of Sowerby. Every instinct tells me that if the public interest has to be argued in public, the kind of secrets visualised by the noble Lord, Lord Boyd-Carpenter—secrets of vital interest to the nation—will be bound inadvertently to come out. That is too great a danger to run. Therefore I am afraid, even now, that I shall vote against the public interest being a defence.
§ Lord Monson
My Lords, it is a great pity that Amendments Nos. 1 and 2 have been grouped for discussion with the other public interest paving amendments. Clause 1 is surely a special case, as the noble Lords, Lord Boyd-Carpenter and Lord Trafford, have suggested. We live in dangerous times; times moreover in which the main threats to the United Kingdom emanate by no means exclusively or even mainly nowadays from behind what we still term the Iron Curtain. This being so, rules sometimes have to be bent, not to protect the commercial interests of the United Kingdom, which is what some of the later clauses are concerned with, but to protect the actual lives of the people of this country. The important thing is that such bending of the rules as there may be is strictly proportionate to the danger faced; in other words, that it should not be excessive.
I have no hesitation in supporting unreservedly the public interest amendments in respect of Clauses 2, 3, 4, 5, 6 and 8. In these clauses the definition of what constitutes damage to this country is so tightly drawn that even the most trivial damage could be caught. It is no good the Government—or for that matter the noble Lord, Lord Houghton of Sowerby —saying that in circumstances such as these prosecutions will probably not be brought, or if brought that juries will probably not convict. For people who face prison for exposing serious wrongdoing the probability of acquittal is not good enough. One looks for certainty in such circumstances, which is why, although I hesitate about Amendments Nos. 1 and 2, I strongly support the other public interest amendments.
§ Lord Hemingford
My Lords, I follow my noble friend in what he says. I hope that we shall consider these amendments separately. We are talking here, as I see it, about whether a small number of people should be denied the opportunity to argue in front of a jury that what they have done is on balance right in the public interest. Those of us who support these amendments say that they should not be so denied. It has been said that disclosures which might 715 already have been made would be immensely damaging. I believe we are trying to deal with a situation in which non-disclosure might be even more damaging. That is why we have defined this so narrowly, as the noble Lord, Lord Renton, said. We do not want it to be a licence for people to give away the nation's secrets. We see it as the ultimate defence at the end of the process referred to many times and described so vividly by the noble Lord, Lord Hunt of Tanworth. Nevertheless, we were left believing that we would be inviting a jury to act, as another noble Lord said, perversely. I am not a lawyer and I bow to other eminent lawyers who are concerned about this matter. But, surely, it is wrong to enact legislation which relies upon a jury behaving perversely to secure justice.
§ Lord Colnbrook
My Lords, it seems to me that the noble Lord, Lord Hemingford, and others whose names are on this amendment have, as my noble friend Lord Trafford reminded us, rather lost sight of the purpose of the Bill. This is the Official Secrets Bill. It is an effort by Parliament to establish what should, and what cannot, be said by public servants. Everyone in your Lordships' House has agreed all the way through our proceedings that this is a very much better effort than has ever been made before and the area a great deal narrower than before. But, as everyone will agree, there comes a moment when a line must be drawn. The Bill seeks to draw it. It draws it, as it stands, with a definite and precise instruction: "Beyond this line, you shall not".
I believe that the law ought to be as precise as possible. At the Committee stage my noble friend Lord Home said exactly that. The more precise the law is, the more clear it is to the layman. As your Lordships know, I am a layman. I am no lawyer. I do not know about juries and courts and so forth. But let us face it. Most of Her Majesty's civil servants are not lawyers either. They are not capable of deciding definitely for themselves what, for example, gross impropriety means. I do not know what it means. I should hazard a guess that if I were to take any six of your Lordships into a room, I would get six different answers. This is very much the same as for the Obscene Publications Bill to which the noble Lord, Lord Jenkins, drew attention a few days ago—the tendency to deprave and corrupt. Nobody knows what it means. Only a court can decide what it means. Equally, the amendment provides that the disclosure is "necessary" to the public interest. What I think is necessary may be different from what the noble Lord, Lord Mishcon, my noble friend the Leader of the House, or anybody else, may think is necessary. However, if I am worked up about something which I think has gone wrong, it is very easy for me to convince myself that it is necessary that it should be disclosed and that I should disclose it. I may be proved wrong in a court, but I should have done the damage.
Surely here we are seeking to limit the damage that can be done. If we say, as the Bill says, "Here are these very limited number of areas, much more limited than anything that has ever gone before, which you may not talk about", that is quite clear. 716 I believe that it will deter people from talking about them, which is what we want to do. We have been spending a lot of time this afternoon arguing about what juries will do and how matters will be presented to the courts. We want to avoid anything ever coming before a court, and therefore I believe that the clause should remain as it is.
§ Lord Brightman
My Lords, I feel some anxiety about these proposed amendments. The possibility of a public interest defence—or iniquity defence, as it is sometimes called—fell to be examined by your Lordships' House in the Spycatcher appeal, arising out of the alleged iniquities that Mr. Peter Wright thought he had discovered and ought to disclose.
My noble and learned friend Lord Griffiths sought to define the defence in these terms, with which I agree:theoretically, if a member of the services discovered that some iniquitous course of action was being pursued that was clearly detrimental to our national interest, and he was unable to persuade any senior members of his service or any member of the establishment, or the police, to do anything about it, then he should be relieved of his duty of confidence so that he could alert his fellow citizens to the impending danger.I believe that if there is to be a public interest defence the emphasis should be on an impending danger. If there is no impending danger then, on balance (at any rate in the context of the security services) it would be preferable not to permit any alleged iniquity to be unearthed and aired in public, except to avert an impending danger. As I see it, the defence that the amendments propose would permit discussion of any alleged iniquity which is past, dead and buried so long as it can credibly be argued that disclosure is necessary in the public interest.
If the requirement were not public interest but impending danger I would not feel such anxiety, but the public interest is a vague concept, and in my respectful submission to allow a defence on those grounds would endanger the purposes of the Bill.
§ 4.45 p.m.
§ Lord Dacre of Glanton
My Lords, I am in favour of this amendment, to which I have put my name. I did so as a layman for what I think are purely a layman's reasons. This amendment will have a good effect in that in one sense it will prevent publication. When I listened to my noble friend Lord Boyd-Carpenter I kept thinking to myself, "What about Irangate?" My noble friend kept referring to the necessity of covering up admitted possible malpractices within the secret services on the grounds that it was better to cover them up in the public interest than to reveal them in the public interest.
Then what happens of course is that there is an explosion. They are revealed by a foreign power, by the Ayatollah, or whoever it may be. In the end the stink is rather worse than it would have been had this amendment been in force, in which case it would probably never have come out at all because the person who felt that it was in the public interest to reveal these facts would have used the proper procedures laid down in the amendment. The effect would have been either that the authorities within 717 the service would have said, "Well, this is too dangerous. This man is going to go to the courts and the whole thing is going to explode. We will change our policy. We will not do it"; or of course it would have come out in a different form, in a rather more respectable form. Therefore I regard this as a kind of safety valve, and particularly valuable because it would very seldom have to be used.
I do not particularly like the phrase "public interest", which is regularly used. "Public interest" has a double meaning. It can be, in the minds of the editors of certain newspapers, gratification of public curiosity. It is a vague phrase. We know what it means. It means the security of the country. I would prefer therefore to look at the amendment as it stands. There it is clearly defined that what has to be proved is not a subjective concept such as, "My conscience forces me to say that I think this is a wrong policy"; it is crime. One goes to one's superiors in order to take counsel, and in the last resort one may go public under this amendment if one is satisfied that crime has been committed.
Well, hang it all, what argument did we use at Nuremberg? We argued that criminality is not excused by superior orders. Therefore someone in a subordinate position who considers that real crime has been committed has a duty not to comply with it, not to obey those orders. Here in this amendment we are offering a mechanism whereby that predicament can be resolved.
There is the argument that those who go into the secret services go in with their eyes open; they go in under special rules, etc. I do not want to make invidious comparisons, but simply looking at it as an abstract theory that is precisely the argument used by the SS. They said that they had a completely different set of rules. They went in with their eyes open. They did not obey the laws of the land. They were under different laws.
I see this amendment as a means of reducing the tensions thus created. I see it as being helpful. I am in favour of secrecy. I am against people over-valuing their own consciences and going public for subjective reasons. I want to protect the secret services. I want them to be secret, but I want their secrecy to be rational and rationally defensible, and I believe that this amendment goes some way towards doing that.
The Minister of State, Home Office (Earl Ferrers)
My Lords, the question whether there should be a public interest defence alongside these provisions has been debated and pursued at all stages of the consideration of this Bill. Indeed I think that my noble friend Lord Boyd-Carpenter said that it had been exhaustingly and exhaustively considered. It is a matter about which your Lordships understandably feel great concern, and your Lordships considered it in Committee. It was put to the opinion of the Committee. Your Lordships rejected it, and in my view quite rightly so too, and I would ask your Lordships to reject this amendment today.
My noble friend Lord Campbell said that it is a public interest defence and it is one that has not existed before, and he did not want to see it exist in 718 the future. I agree with my noble friend. He ran into a certain amount of stick from the noble Lord, Lord Mishcon, who said that it referred only to those cases for which there was a no harm test. It is not often that one finds oneself thinking—I put it no higher than that—that the noble Lord, Lord Mishcon, is wrong, but excitingly I find the occasions are becoming more frequent.
I believe that my noble friend Lord Campbell is right. It is true that we are talking about Amendment No. 1, which specifically refers to the security and intelligence services; but the noble Lord will be aware that many amendments are grouped together and the substantive amendment, Amendment No. 25, refers not only to those for which there is no harm test but also those for which there is a harm test. I see that the noble Lord is anxious to get to his feet and I shall not deny him the privilege.
§ Lord Mishcon
My Lords, if the noble Earl finds it exciting that the number of my mistakes is increasing, I hope that it will be a competition which both of us find exciting over the years and that it will be mutual.
Having said that, I imagine that the noble Earl does not know that there has been an agreement that any vote on this amendment shall be limited to Amendment No. 1 linking Amendment No. 25 to it, and that the others will be taken separately. I asked leave of the House to speak to all the amendments in regard to the principle of Amendment No. 25 but, as the House will remember, all my arguments were addressed to Clause 1 and Amendment No. 1. However, I repeat that the increasing number of times that the noble Earl finds me wrong will, I am afraid, continue and I merely hope that there will occasionally be a return match.
My Lords, I should not wish for a competition as to how many times the noble Lord or I will be wrong because I have a horrible feeling that I may not come out the winner. The parliamentary nicety to which the noble Lord referred had escaped me. I thought that we were considering Amendments Nos. 1, 2, 8 and so on together, but the noble Lord wags his head. I bow to that although that is what I had understood to be the position. However, those amendments all refer to a public interest defence, and I agree with the noble Lord, Lord Houghton of Sowerby, when he said that we do not need any more special defences and that common sense says that we should leave the thing alone. Common sense like that appeals to me and I support him wholeheartedly.
The noble Lord, Lord Jenkins of Hillhead, referred to a newspaper which he had read at an out of the way airport. He asked me whether I would like to comment on that. Perhaps I may say that I do not think that that is particularly relevant and I do not wish to comment on what the noble Lord read. Here we are considering whether or not there should be a public interest defence in any future business with regard to official secrets.
I was grateful when my noble friend Lord Home also came out against this amendment, as did the noble and learned Lord, Lord Brightman. My noble 719 friend Lord Colnbrook said that the law must be precise and that is exactly what we are trying to achieve. As he so clearly said, there must be a line drawn beyond which everyone knows that they cannot go. In inviting your Lordships not to accept this amendment or the other amendments, may I suggest that your Lordships will wish to consider the many distinguished speakers who have spoken on previous occasions as well as today who have, from their experience, come down against introducing a defence of this nature. I recognise that that view is not unanimous and that many other noble Lords with equally great experience take a contrary view equally conscientiously.
We had a long debate in Committee and I do not propose to rehearse all those arguments again. However, it is fair to say that this is only a matter of principle. The noble Lord, Lord Mishcon, was, as usual, persuasive and tried to meet all the objections of my noble friend Lord Belstead on the drafting. However, this is not a matter of drafting. It is not a matter of landing on some happy conjunction of language which somehow will placate everyone. It is a matter of principle.
As we see it, the principle is this. We do not believe that someone should be able to do untold damage to the interests which are quite properly and prudently protected by the Bill in the hope that he can persuade a jury that he did so in order to serve some other interest; namely, the public interest.
I believe that that principle is sound for two reasons. First, unless the criminal law is clear on this point the result will inevitably be that disclosures will be made which will indeed cause great harm. Once a disclosure is made, it cannot be unmade. The damage will have been done. Whatever the jury later decides, nothing can undo that damage. Human nature being what it is, people will always push against the ropes to see how much give there is and how far the law will permit them to go. As a result, I believe that more damaging disclosures will be made if this amendment is in the Bill than if it is not.
Amendment No. 25 says that,in the circumstances the disclosure was necessary in the public interest".That would be a matter for the jury to decide. Whatever the jury decided, the disclosure would have been made and that is not right. As my noble friend Lord Colnbrook said, the whole purpose must be to limit the damage. If this amendment were accepted, that could result in damage to the work of the intelligence and security services. They would be less able to protect us from terrorist atrocities and other threats. Our defence capability will be weakened and the lives of our citizens put at risk. We shall be less capable of pursuing our interests on the world stage, interests on which the safety and prosperity of everyone depends. Although I believe that the amendment does not intend this, it will permit such damage to be made and it will be left to a jury to sort out whether the disclosure was justified and, if not, whether the defendant has been guilty of a criminal offence and should be punished. 720 It will then be too late and, as my noble friend Lord Trafford said, the cat will be out of the bag.
The second reason for resisting this proposal is practical. A jury in a criminal trial cannot be expected to determine such mattes as what is in the public interest. The Franks Committee—and the noble Lord, Lord Mishcon, will be delighted to know that I pray that in aid, as he sometimes does—recognised that fact, which is why it proposed a ministerial certificate.
The noble Lord, Lord Hutchinson of Lullington, said that the amendment has been very carefully drafted and that all the words could be understood by a jury. Under this amendment the jury not only has to grapple with the curious words and the concept, as the amendment has it, of gross impropriety. I do not agree with the noble Lord, Lord Hutchinson. I do not believe that those words are easy for a jury to understand. The jury will have to understand the meaning of, "gross impropriety", and whether that gross impropriety amounted to serious misconduct. The jury also has to decide what was or was not necessary in the public interest. If anything, this part of the amendment is less specific in its application and more far-reaching in its effect than the amendment rejected in Committee. The public interest to which the amendment refers is, not surprisingly, not defined.
Public interest is a very broad concept in marked contrast to the specific provisions in the Bill. If the amendment is accepted, Parliament will be giving its task of definition to the jury. What is and what is not in the public interest? We should leave juries to try to interpret what Parliament has failed adequately to define and we should be inviting people to take a chance. Any trial on that basis would be a trial with the public service in the dock, and a jury assembled ostensibly to determine the facts will find itself in a similar position to a wide-ranging public inquiry. That is not a reasonable basis on which to proceed.
The noble Lord, Lord Mishcon, accelerated our imaginations somewhat, as he often does, by asking what would happen in the case of the head of the security and intelligence services misappropriating all the money and going off to Marbella. I do not know whether it is helpful to draw analogies for the imagination but the noble Lord asked what, in that event, would be the position of a member of the security services. The proper procedure for any member of the services who believes that he has uncovered some sort of crime is to report the matter, without delay, to his superiors. That is the normal and established procedure in any organisation. Anyone who did not do so would clearly be in breach of his official duty, so it is up to him to do so.
If the member of the services has anxieties about the response from his organisation, or on any other matter relating to his work, he can then take his anxieties to the staff counsellor. That person is wholly independent and is there to hear any concerns which the service members may have. He has direct access to the Prime Minister. My noble friend Lord Campbell of Croy was right in saying that that is the right course for the person to take. In the circum- 721 stances described by the noble Lord, Lord Mishcon, it is inconceivable that the staff counsellor would not take the necessary action. There is no need, as Ministers have always made clear, to have provision for members of the services to report details of their work to Members of Parliament.
The noble Lord leaves those avenues of attention to one side and asks who else a member of the services can tell. I believe that we are in the realms of fantasy, but I can assure the noble Lord, Lord Mishcon, that in electing to consult a solicitor the normal rules of legal professional privilege apply. If someone needs to seek advice about his person legal position the Bill does not prevent him from consulting a solicitor. If a person were to report an alleged offence to the police in good faith he would not commit an offence under the Bill. That is because in those circumstances such an action would clearly not be inconsistent with his official duty. I hope that clarifies the position to which the noble Lord referred.
I come back to the simple proposition which presents itself to the House. It cannot be right to provide for or to encourage disclosures which a person knows are against the law and only afterwards allow him to try to justify that conclusion. Whether he fails or succeeds, the damage will have been done. Your Lordships have already affirmed this proposition in Committee and I hope that your Lordships will do so again.
My Lords, I know that the House will not think that I am indulging in exaggerated language when I say with every courtesy that the speech that the noble Earl has just delivered, while having its usual charm, has stood reason on its head. However, because it was uttered with his usual charm I do not think reason will unnecessarily complain—but I do. I complain for the following reasons.
The whole purpose of the speech of the noble Earl was to say—and other Members of your Lordships' House have said it—that once a disclosure is out the harm has been done; that it would be quite wrong to leave a jury to deal with such difficult matters as to whether or not a crime had been committed (and the defendant would have to prove that) and whether or not it was necessary in the public interest for the disclosure to be made.
The reason I say that the noble Earl's logic escaped me completely is that the whole praise that the Government have taken for this measure—and I joined in the praise—was that they departed from their previous Bill which dealt with a Minister's certification of what was security, what was harmful, and so on, in regard to the nation's security and were leaving it to a jury. I invite your Lordships to look at the provisions of this Bill which follow the very provision which I have been arguing about and which state that:if without lawful authority he makes a damaging disclosure of any informationhe is guilty of an offence. That point was made by the noble Lord, Lord Campbell of Croy, in the course of his remarks. Then, in subsection (5): 722It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question related to security or intelligence"—that is quite easy, but it then continues—or, in the case of an offence under subsection (3), that the disclosure would be damaging within the meaning of that subsection".The noble Lord, Lord Boyd-Carpenter, said that we must stop matters going before the courts; for example, where there is an investigation of the crime but the investigation would reveal that we were manufacturing an atom bomb—that we dare not deal with that. However, the whole of that would be gone into if this were not a question of a Crown servant, a member of the security or intelligence service, or someone notified under subsection (1). If he were a civil servant in the Ministry of Defence who had dealt exactly with this disclosure that we referred to earlier, the whole question of whether it was damaging would have to come out in evidence. The defence would have the opportunity of cross-examination and saying, "How could anyone know that this was, in fact, harmful?". The whole of it would come out and the disclosure already made. Therefore, what we are doing arguing about this matter, I know not.
§ Lord Boyd-Carpenter
My Lords, is the noble Lord saying that because, in the circumstances he described of a civil servant at the Ministry of Defence, it might not be possible to prevent serious matters being disclosed there is therefore no point in protecting information where it is most vulnerable of all—that is, in the secret service?
§ Lord Mishcon
My Lords, my argument is that it is not a reasonable point to put forward that in this Bill we have protected juries from having to discuss and decide upon and counsel having an opportunity to deal in open court with matters concerning the nation's security. I am saying that this Bill does it, and if it does so in principle, a fortiori it should do so when the defence has to show that an actual crime or gross impropriety has been committed. The noble Lord may disagree with me, but that is my argument. In my view it completely annihilates any argument that we protect all these matters from being dealt with before a jury, and that I and my colleagues would be upsetting that with this amendment.
My second observation is this. In my humble opinion it is idle to speak in the terms in which, for example, the noble Lord, Lord Boyd-Carpenter, spoke; namely, that it does not matter what crime has been committed, you must not allow that to come out by a disclosure (which I would permit under this amendment with a proper defence) because it conceivably may be that in one case out of goodness knows how many, behind it all is a security secret.
We are dealing with a department, the secret service, for which I have nothing but praise. Unlike my noble friend who has much more experience over the years than I have, I do not propose to belittle its work or to describe it in offensive language. I take 723 it for granted that its work is dangerous and that the members of that service carry out their work in personal danger for themselves in the nation's interest. From this Front Bench I am not going to say anything else. We have known of the most dreadful things occurring within that service and it is not as though I am dreaming about it. There have been instances that boggle the imagination. Treason has been in that secret service. To say under the Bill as it now stands "It does not matter; you may go through the normal procedures and people may say that they are not taking any action. You cannot and you must not deal with this matter by way of any disclosure, even if you can prove crime committed or that it is necessary in the public interest to disclose; even if you can prove no action taken and you have had to go through the whole of the procedure".
In my view we are encountering a greater danger if we oppose this amendment than ever we could pose to the security of our country because the message that goes out is a bad one. It is: "Whatever happens within that service, you are safe. There will be no disclosure because, whatever the circumstances, that disclosure will be that a crime has been committed". Finally, I turn to what the noble Earl said in answer to my questions. He said: "It is all right because if you went to the police you could show that it was part of your official duty". That is why I specially quoted the words that had been used in the Franks Report, which talks of a defence if disclosure had been in the course of official duty. The language of this Bill does not follow what the noble Earl said in answer to my question about informing the police, going to a solicitor or a Member of Parliament. The words are "without lawful authority". That means that if he did not get authority to make the disclosure and that was a lawful authority, he has committed an offence.
I do not believe that I can add anything more in replying to what has been said in this debate. Especially after the speech of the noble Lord, Lord Dacre, to which I believe we all listened with respect whether what he said was agreed to on the other side or not, I hope that it is not a question of party loyalty that leads one into the Division Lobby on this occasion. I hope that it is a question of national ethics for which all of us are responsible.
§ 5.13 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 99; Not-Contents, 168.725
|DIVISION NO. 1|
|Addington, L.||Blease, L.|
|Airedale, L.||Boston of Faversham, L.|
|Allenby of Megiddo, V.||Brooks of Tremorfa, L.|
|Amherst, E.||Bruce of Donington, L.|
|Ardwick, L.||Buckmaster, V.|
|Aylestone, L.||Carmichael of Kelvingrove, L.|
|Blackstone, B.||Carter, L.|
|Cledwyn of Penrhos, L.||Longford, E.|
|Cocks of Hartcliffe, L.||McGregor of Durris, L.|
|Cork and Orrery, E.||Mackie of Benshie, L.|
|Dacre of Glanton, L.||McNair, L.|
|David, B.||Mar, C.|
|Davies of Penrhys, L.||Mason of Barnsley, L.|
|Dean of Beswick, L.||Mayhew, L.|
|Dormand of Easington, L.||Milner of Leeds, L.|
|Elwyn-Jones, L.||Mishcon, L.|
|Ennals, L.||Mulley, L.|
|Ezra, L.||Murray of Epping Forest, L.|
|Falkland, V.||Nicol, B.|
|Fisher of Rednal, B.||Northfield, L.|
|Foot, L.||Ogmore, L.|
|Galpern, L.||Peston, L.|
|Gladwyn, L.||Pitt of Hampstead, L.|
|Glenamara, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Graham of Edmonton, L.|
|Grey, E.||Prys-Davies, L.|
|Grimond, L.||Ritchie of Dundee, L.|
|Hampton, L.||Robson of Kiddington, B.|
|Hanworth, V.||Rochester, L.|
|Harris of Greenwich, L.||Rugby, L.|
|Hayter, L.||Sainsbury, L.|
|Hemingford, L.||Saint Brides, L.|
|Hooson, L.||Seear, B.|
|Hughes, L.||Serota, B.|
|Hutchinson of Lullington, L.||Shackleton, L.|
|Hylton, L.||Shepherd, L.|
|Jay, L.||Stallard, L.|
|Jeger, B.||Stedman, B.|
|Jenkins of Hillhead, L.||Stewart of Fulham, L.|
|Jenkins of Putney, L.||Stockton, E.|
|John-Mackie, L.||Taylor of Gryfe, L.|
|Kagan, L.||Taylor of Mansfield, L.|
|Kearton, L.||Tordoff, L. [Teller.]|
|Kennet, L.||Turner of Camden, B.|
|Kilbracken, L.||Underhill, L.|
|Kilmarnock, L.||Wallace of Coslany, L.|
|Llewelyn-Davies of Hastoe, B.||Whaddon, L.|
|Lloyd of Kilgerran, L.||Winstanley, L.|
|Lockwood, B.||Zuckerman, L.|
|Airey of Abingdon, B.||Colnbrook, L.|
|Alexander of Tunis, E.||Constantine of Stanmore, L.|
|Allerton, L.||Cornwallis, L.|
|Alport, L.||Cottesloe, L.|
|Annaly, L.||Cox, B.|
|Arran, E.||Craigavon, V.|
|Ashbourne, L.||Craigton, L.|
|Balfour, E.||Cranbrook, E.|
|Beaverbrook, L.||Croft, L.|
|Belhaven and Stenton, L.||Cullen of Ashbourne, L.|
|Beloff, L.||Davidson, V. [Teller.]|
|Belstead, L.||Denham, L, [Teller.]|
|Bessborough, E.||Derwent, L.|
|Blatch, B.||Dormer, L.|
|Bolton, L.||Dundee, E.|
|Borthwick, L.||Eden of Winton, L.|
|Boyd-Carpenter, L.||Elibank, L.|
|Brabazon of Tara, L.||Ellenborough, L.|
|Braye, B.||Elliott of Morpeth, L.|
|Brightman, L.||Faithfull, B.|
|Broadbridge, L.||Fanshawe of Richmond, L.|
|Brookeborough, V.||Ferrers, E.|
|Brougham and Vaux, L.||Fortescue, E.|
|Burton, L.||Fraser of Carmyllie, L.|
|Butterfield, L.||Fraser of Kilmorack, L.|
|Butterworth, L.||Gainford, L.|
|Caithness, E.||Gisborough, L.|
|Campbell of Alloway, L.||Goold, L.|
|Campbell of Croy, L.||Grantchester, L.|
|Carnegy of Lour, B.||Gray of Contin, L.|
|Carnock, L.||Greenhill of Harrow, L.|
|Carrington, L.||Halsbury, E.|
|Cathcart, E.||Hanson, L.|
|Clitheroe, L.||Harmar-Nicholls, L.|
|Cockfield, L.||Harvington, L.|
|Havers, L.||Orkney, E.|
|Headfort, M.||Oxfuird, V.|
|Hemphill, L.||Pender, L.|
|Henley, L.||Penrhyn, L.|
|Hertford, M.||Piatt of Writtle, B.|
|Hesketh, L.||Pym, L.|
|Hives, L.||Radnor, E.|
|Holderness, L.||Rankeillour, L.|
|Home of the Hirsel, L.||Reay, L.|
|Hood, V.||Renton, L.|
|Hooper, B.||Robertson of Oakridge, L.|
|Hunter of Newington, L.||Rodney, L.|
|Hylton-Foster, B.||St. Davids, V.|
|Iddesleigh, E.||St. John of Fawsley, L.|
|Jenkin of Roding, L.||Saltoun of Abernethy, Ly.|
|Johnston of Rockport, L.||Sanderson of Bowden, L.|
|Joseph, L.||Seebohm, L.|
|Kaberry of Adel, L.||Selborne, E.|
|Killearn, L.||Sempill, L.|
|Kimball, L.||Shannon, E.|
|Lauderdale, E.||Sharpies, B.|
|Layton, L.||Shaughnessy, L.|
|Lloyd of Hampstead, L.||Skelmersdale, L.|
|Long, V.||Slim, V.|
|Lucas of Chilworth, L.||Stodart of Leaston, L.|
|Luke, L.||Strange, B.|
|McAlpine of West Green, L.||Strathclyde, L.|
|McFadzean, L.||Srathcona and Mount Royal, L.|
|Mackay of Clashfern, L.|
|Macleod of Borve, B.||Sudeley, L.|
|Malmesbury, E.||Suffield, L.|
|Mancroft, L.||Swansea, L.|
|Manton, L.||Swinfen, L.|
|Margadale, L.||Terrington, L.|
|Marley, L.||Teviot, L.|
|Marshall of Leeds, L.||Thomas of Gwydir, L.|
|Massereene and Ferrard, V.||Trafford, L.|
|Merrivale, L.||Trefgarne, L.|
|Mersey, V.||Trumpington, B.|
|Middleton, L.||Ullswater, V.|
|Milverton, L.||Vaux of Harrowden, L.|
|Monk-Bretton, L.||Waldegrave, E.|
|Mountgarret, V.||Westbury, L.|
|Mowbray and Stourton, L.||Wilberforce, L.|
|Munster, E.||Windlesham, L.|
|Murton of Lindisfarne, L.||Wise, L.|
|Norfolk, D.||Wolfson, L.|
|Nugent of Guildford, L.||Wynford, L.|
|Onslow, E.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.22 p.m.
§ [Amendments Nos. 2 and 3 not moved.)
§ Lord Elwyn-Jones moved Amendment No. 4:
Page 2, line 5, at end insert—
(5) It is a defence for a person charged with an offence under this section to prove that—
The noble and learned Lord said: My Lords, this amendment provides a limited form of prior publication defence for the offences in Clause 1. The offences in Clause 1 are absolute. When the matter was considered in another place the right honourable gentleman the Home Secretary said:
There is no question of there being no prior publication defence. It is a question of whether that defence should be absolute".
The defence in Amendment No. 4 is not absolute. The amendment says:
It is a defence for a person charged with an offence under this section to prove that—
The person seeking to raise the defence has not only to prove the matters in subsection (5)(a) but must also establish that:
there was no reasonable likelihood that its further disclosure would damage the work of, or of any part of, the security and intelligence services".
It is not an absolute defence and therefore meets that objection of the Home Secretary.
The issue of disclosure of previous matters has been considered in the courts. The great and dramatic attempt by the Government to defy previous publication and the common knowledge of the matters being dealt with in the Spycatcher case has become one of the most remarkable phases of litigation in which any government have indulged for a long time. In the Spycatcher case the noble and learned Lord, Lord Brightman, said that, where there had been previous publication and circulation of information, it was meaningless co talk about a continuing duty of confidence in relation to matters disclosed worldwide. That was the position in the Spycatcher case. The noble and learned Lord also said:
The Crown is only entitled to restrain the publication of intelligence information if such publication would be against the public interest, as it normally will be if theretofore undisclosed, but if the matter sought to be published is no longer secret there is unlikely to be any damage to the public interest by reprinting what all the world"—
that was the position in regard to Spycatcher—
has already had the opportunity to read. There is no possible damage to the public interest if Tom, Dick or Harry, or the Sunday Times, reprints in whole or part what is already printed and available within the covers of Spycatcher".
When an attempt was being made still to restrain the information in the book, the noble and learned Lord, Lord Griffiths, said:
If such was the law, then the law would indeed be an ass".
When we tabled an amendment in Committee there were criticisms that it went far too wide and that it needed to be specific. The amendment moved by the noble Lord, Lord Bonham-Carter, which was criticised in Committee, made it a defence to prove that before the time of the alleged offence the information in question had become available to the public, whether in the United Kingdom or elsewhere. The noble Lord, Lord Campbell of Croy, said that on that language unscrupulous people might be tempted to arrange for information to be published by an obscure foreign newspaper. Once it had been published it would be sought to be said that the information could thereafter be produced in court. He also referred to minor reports in small weekly newspapers. Whether the papers concerned were pleased with this description I do not know. He described them as the Strathspey and Badenoch Herald and the Forres Gazette, famous national newspapers.
The matter was also considered by the noble Lord, Lord Belstead, who said how hard it would be in the interests of the nation if some indiscretion somewhere in the world out of reach of the Bill and our courts left the way open to appear to encourage the disclosure of this kind of information. That is why we have changed the language of the clause. We have required the proof to constitute evidence that the information in question,
had become widely disseminated to the public".
That is a far more specific and effective statement of what prior publication should amount to, whether in the United Kingdom or elsewhere. In my submission, the new language, as contained in the amendment, meets the criticisms which the amendment had to meet during the early stages of the Bill's proceedings. In those circumstances, I beg to move.
§ 5.30 p.m.
§ Lord Boyd-Carpenter
My Lords, one sees what the noble and learned Lord is seeking to achieve by means of the amendment. Indeed, it is perfectly open to him, or to any of your Lordships, to argue that once secret information has been widely disclosed, there may not be much point in proceeding against further disclosures. But, as against that argument, it suggests that if someone commits a breach of security and gets away with it to a modest degree, that person is entitled to publish as much as he likes everywhere and no one can do anything about it. In other words, if you commit a modest offence you should have free licence to commit as much more of the same offence as you wish. I am not sure that that is an attractive aspect of the legislation.
Apart from that fact, the actual drafting of the amendment is rather odd. First, it deals with information being,widely disseminated to the public, whether in the United Kingdom or elsewhere".It could be widely disseminated to the public in Patagonia; but that does not necessarily mean that no harm would be caused by its dissemination in the United Kingdom. Therefore it seems to me to provide a considerable loophole for someone who wants—probably for money—to publish secret information and get away with it in some small foreign country. That person would then be able to say, "Under the Bill"—as it would be if amended in this way— "you can't stop me doing it in the Observer"; or perhaps it may be one of the other distinguished newspapers in the country.
The other interesting limitation is contained in subsection (b), which reads:there was no reasonable likelihood that its further disclosure would damage the work of, or of any part of, the security and intelligence".In other words, it is limited—at least, as I understand it—to providing that the disclosure should not do damage to those services. But what about general damage to this country? What about damage to the British economy by disclosure of damaging facts? What about the general defence arrangements of this country? The wording is extraordinarily limited. Therefore I suggest to your Lordships that even if 728 one likes the noble and learned Lord's approach to the matter, this amendment is a singularly bad vehicle for putting the provision into the legislation.
§ Lord Ardwick
My Lords, I found the Bill very difficult to understand. Indeed, it has been made all the more difficult by both opponents and supporters of the legislation giving rather misleading impressions. I hope that I have not got the matter wrong. When we brought forward our slightly different amendment about prior publication in Committee, the Government successfully resisted it with a sinuous and highly imaginative argument. They contended that because a secret had been published in an obscure journal its dangerous content had not necessarily become known to all our potential enemies. Therefore, to repeat it in a publication of wider circulation might provide useful information for someone capable of making bad use of it.
There was a further and more ingenious argument from the Government. They said that a discloser might publish a couple of lines in some small and innocent paper in the Scottish Highlands in order to justify subsequent publication at length and at full strength in a national newspaper; and so the defence of prior publication was in itself unacceptable. The difference between the arguments that were put forward on that occasion and those put forward today is that we have moved from Strathspey to Patagonia. However, the argument is no more convincing.
There is something in those arguments. One understands the Government's wish to frustrate such knavish tricks. However, the Government had other arguments. They pretended that a defence of prior publication was unnecessary, especially for Crown servants and contractors. They said it was unnecessary because an impressive way for the defence to show that no further harm had been done was simply to bring forward evidence of prior publication. They even argued, rather unconvincingly, that this amendment put a burden on the defence. They argued that it put the test of harm on the defence, whereas under the provisions of the Bill the burden was put on the prosecution.
Under the amendment as it was—and as it still is—all the defence has to show on that point is that the defendant could have had no reasonable belief that further disclosure would damage the work of the services. Of course it could not prove a negative; it would still be up to the Government to prove that there were dangers which the defendant ought to have foreseen.
The amendment aims to find an answer to all the fiddly (though not unjustifiable) arguments about disclosures made in small print in obscure newspapers and then magnified in well-known and subsequent publications. The new amendment provides that only if the disclosure has been widely disseminated may it escape penalty; in other words, a limited defence. The original discloser would still not escape, nor would his original publisher.
However, if the amendment is accepted, as an editor I would know what my opportunities and my limitations would be. In that connection I must answer two questions: first, "Has this item been 729 widely disseminated?" Then, if someone tells me it has been disseminated in Patagonia, I would not think that that would be a defence, nor indeed would anyone. Secondly, if the information has been widely disseminated, I must ask myself, "Is it likely that its repetition in my paper would further damage the work of the security or intelligence services?" I must answer both questions affirmatively if I am to go ahead without peril. Moreover, although I have a defence, if the Government should dislike what I have done it is still not an absolute defence.
However, the Government have a further problem. Let us suppose that the widely publicised disclosure is repeated by a member of the security or intelligence services, or even by a journalist who is caught up in an absolute offence trap. In that case, there is no defence. The noble Lord, Lord Belstead, argued that any unauthorised disclosure by such a person is harmful and so is forbidden. But is it really harmful? Surely you cannot disclose what has already been revealed to the wide world. There it stands, widely disseminated and in full public view. As the noble and learned Lord, Lord Brightman, said, and as my noble and learned friend mentioned, it is meaningless to talk about a continuing duty of confidence in relation to a matter disclosed worldwide. Moreover, then to lay down the restriction that officers can never speak an unthorised word so long as they are on this side of the pearly gates strikes me as neither reasonable nor practical.
This is a reasonable amendment. It is the kind of restricted defence which a wise and fair government might have provided if certain traumatic experiences had happened less recently or had not happened at all. I beseech the Government to remember that in these latter stages of the Bill's proceedings they are not legislating to deal with a rare and recent event retrospectively; they are legislating for the long-term future.
Lord Campbell of Croy
My Lords, I am sure that we are all grateful to the noble and learned Lord who introduced the amendment, which he did most helpfully. He explained that it is another approach to the question of prior publication and that it differs greatly from the one we discussed in Committee. I believe that a word has been missed out. I hope that I can have the attention of the Front Benches because I hate the thought that the noble and learned Lord missed my compliments. The problem that my noble friend Lord Boyd-Carpenter pointed out will be corrected if the word "services" is inserted at the end of the last line of the amendment. I believe that it has been omitted as a drafting or printing error. If that is not done, the word "the" in the previous line is out of place.
Lord Campbell of Croy
I shall address myself to the amendment on the basis that the word "services" has been omitted. I agree that the amendment deals with two of the points that I raised in Committee. It deals with the case of an unscrupulous person arranging for something to be published in an 730 obscure place abroad which, under the amendment moved in Committee, would have been the excuse for giving it a front-page story in a national newspaper in this country. It also meets the other point I raised about something appearing in a small weekly newspaper in this country which probably would not be observed by the IRA, Colonel Gaddafi or other international terrorists, even if sophisticated foreign intelligence services picked it up.
I believe that the noble Lord, Lord Ardwick, misunderstood what I said in Committee. I thought that he had when he spoke after me in Committee; he certainly has today. In the case of a local newspaper in this country I was not suggesting that the article was something that had been put in deliberately by an unscrupulous person. I was merely suggesting that defence arrangements can sometimes be strayed upon in this country. Something may be reported by chance and innocently connected with an installation or system which those concerned do not then want to be noticed as something connected with intelligence or security as it may then be magnified into a national newspaper story.
§ Lord Ardwick
My Lords, I must apologise if I misunderstood the noble Lord. But someone in that debate suggested that it was possible to carry out a dirty trick by inserting a couple of lines in a small innocent country newspaper.
Lord Campbell of Croy
My Lords, I made that suggestion in respect of publication abroad, but not in this country where something can be stumbled upon. As I said, I have come across such an example in the past. That is why I cannot give any indication of the type of thing that can be stumbled upon. Many years ago when I was involved in such matters I saw one or two cases where something had been stumbled upon by chance; but because it was unnoticed in some minor newspaper, no damage was done.
The amendment makes great progress from last time. However, I still believe that the drafting is difficult because,widely disseminated … in the United Kingdom or elsewhereraises problems with the "or elsewhere". As my noble friend Lord Boyd-Carpenter pointed out, wide dissemination in one small country might be "elsewhere". If it were some small country in Africa, for example, it might not be in English. It might be in a difficult language. Again, it might not be noticed unless it were taken up and given wide publicity in national newspapers in this country. I do not believe that the drafting is good enough yet because "or elsewhere" could mean something that had done little or no damage in its appearance abroad but would be capable of creating a great deal of damage in this country if it appeared in the newspapers and was read by millions of people.
Although I applaud the attempts that have been made—the points that I raised in Committee have been met—I do not believe that the proposed amendment is good enough. We should not accept such an arrangement regarding prior publication.
§ 5.45 p.m.
§ Lord Mishcon
My Lords, before the Minister speaks to the amendment, I wonder whether it is the view of the House and the Minister that some wide publication would be acceptable but because Patagonia, or some such territory could be covered by the clause, it is not acceptable. If that were the view of the House, unless my noble and learned friend thinks otherwise, there would be no point in taking a vote upon this amendment. One could come before the House on Third Reading with an amendment which was then acceptable. I gather from what the noble Lord said that he felt that we could cover that position but that it should be in different language. If that were so, and that were the view of the Minister, it is a matter which would merit our consideration.
Lord Campbell of Croy
My Lords, before the noble Lord sits down, and as I have already spoken and would not want to offend against the rules on Report, I should make it clear that I was, in the usual way one does in the House, accepting that two of the points that I raised in Committee were met by the amendment. However, I would not go so far as to say that all the ingenuity of the Front Bench opposite would be able to produce something that I could accept.
My Lords, I am glad that my noble friend Lord Campbell managed to clarify his position on that point. It might have dulled the enthusiasm of the noble Lord, Lord Mishcon, again to try drafting on this subject. I am bound to say that this is a matter of principle. The House debated an almost identical amendment in Committee and although the amendment has been slightly redrafted since then, it does nothing to answer the principal problem which my noble friend the Lord Privy Seal identified on that occasion.
The amendment puts any Crown servant or government contractor who is not a member of the security and intelligence services, or a notified person, in a worse position than he would be under the Bill in its present form. That is because, for the first time in this country, we propose a test of harm for such disclosures. The test is that the disclosure damaged, or was likely to damage, or was of a class or description likely to damage, the work of the services. It is a test which the prosecution must prove. It is not, like the amendment, a defence for the defendant to prove. The test contained in the Bill allows someone to argue that no damage was caused because the information he disclosed was already widely available to the public. He does not have to prove it. The prosecution has to prove otherwise. That is the position under the Bill. It fully meets the amendment's objectives in the case of the ordinary Crown servant or government contractor.
The real targets of the amendment are members, or former members, of the security services and notified people. Under the Bill, in the case of any unauthorised disclosure which they may make, the prosecution is not required to prove the harm that resulted. There are good reasons for that. We discussed them in Committee and your Lordships 732 firmly rejected in a Division amendments which would have introduced a test of harm for such disclosures. The amendment would, in effect, introduce a test of harm if the information had—to quote the slightly mystical drafting of the amendment— "become widely disseminated".
I am afraid that, try as others might, there is no getting away from the basic principle upon which the offence properly relies. The principle is that members of the security and intelligence services, and notified people, work, and can only work, on the basis of trust. The trust on which they must work is that they do not, without authority, talk publicly about what they do or what they used to do. It is a fairly simple principle, one which everyone understands and one which I think most people—but I know not all—accept. That trust is not divisible. It cannot be set aside by a member of the services deciding to jump on someone else's publicity bandwagon. It is no justification to breach the trust because some story is doing the rounds. There cannot, either in practice or in principle, be a level of circulation or dissemination above which it is acceptable for a member of the services to breach his trust and say what he knows, but below which it is unacceptable. Any unauthorised disclosure by a member of the security and intelligence services must be unacceptable.
This is a principle which is not dependent on whether the matter is being discussed by 100 people or by 100 million. Indeed, some of your Lordships might well think that the more some story or allegation relating to security or intelligence is disseminated abroad, the more important it becomes for members of the services to give no currency or credence whatever to those reports. The noble Lord, Lord Ardwick, was concerned that there was no defence of harm in disclosures by a person who is not a member of the services. I think the noble Lord is mistaken in saying that a person who discloses information which is passed to him by a member of the services is without a defence of harm. He has more than that. Under Clause 5(3) of the Bill—that is the provision which relates to those kinds of disclosures—the prosecution would have to prove damage to the work of the services.
There is an important issue which the amendment would set aside. It is a matter which goes to the heart of the security of the nation as a whole and to the expectations which this country must have of those who work in the security and intelligence services and which these people have a right to expect of each other, both present and former colleagues. It is that the trust on which they depend must not be broken. That principle has already been accepted by the Committee, and the amendment would provide the conditions in which that trust could be broken. For those reasons, I hope that the noble and learned Lord will consider it appropriate not to press his amendment but to withdraw it.
§ Lord Elwyn-Jones
My Lords, I have listened with great care to what the noble Earl has said. However, there is a serious point here. When one thinks of Spycatcher, the defence of prior publication was successfully maintained in the face of disclosures of 733 a highly sensitive character in the book, covering the whole range of security and official secrets. Their Lordships, sitting judicially, were ready to accept and they asserted the folly of ignoring the publication of information contained in Spycatcher.
I am interested in the reference to Patagonia as a place where any disclosure might possibly not become known. However, it was a bad choice. Patagonia has a powerful Welsh colony. At the last national eisteddfod there was a most attractive representative who came from Patagonia. Therefore that argument does not at all weaken my case as to wide circulation.
§ Lord Boyd-Carpenter
My Lords, will the noble and learned Lord allow me to intervene? He has very kindly reinforced my argument. If, as he says, Patagonia produces a charming Welsh personality then the risk of the news being disseminated from there is much greater.
§ Lord Elwyn-Jones
My Lords, that is what I am saying. It is why in that case there would be wide dissemination in regard to prior publication. I must confess to paternity of the phrase "wide dissemination" which was so cruelly rejected by the noble Earl. It is a pretty good alternative to "giving wide publicity". However, I shall not press that argument too much. Lest the blame should fall upon the ample shoulders of my noble friend Lord Mishcon, I rush to confession but not avoidance on this occasion. We shall certainly give further thought to the subject.
There is one further matter which I should mention before I conclude. The language used in the amendment was in part the kind of language used by the Government themselves in their 1979 Bill to reform Section 2 of the Act. It contained a prior publication defence for disclosures about law enforcement and information supplied in confidence by others. In Clause 7(1) of the Protection of Official Information Bill there was a provision:It shall be an offence for a person charged with an offence"—under the specified sections—to prove that before the time of the alleged offence the information had been made available or had become available on request to the public or a section of the public".Looking again at the matter—perhaps I should have mentioned it earlier—gives me cause to think that a further examination of the language of the amendment might prove profitable and in the public interest. In those circumstances but giving an undertaking—I shall not use the word "threat"; it is an ugly word—that I shall come back to it at the next stage of the Bill, I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Bethell moved Amendment No. 5:
Page 2, line 11, at end insert—
("( ) It is a defence for a person charged with an offence under this section to prove that the interests of the United Kingdom would have been jeopardised if he had not made the disclosure which caused him to be charged.").
§ The noble Lord said: My Lords, Amendment No. 5 is a version of a public interest defence but is worded in far narrower terms than those proposed by the noble Lord, Lord Mishcon, and others earlier 734 this afternoon. Noble Lords will see from consulting the Marshalled List that the text which I propose does not refer to any specific crime which might be committed by members of the secret services. It does not refer to fraud or misconduct or gross impropriety. It refers exclusively to the national interest. It places a particularly heavy burden of proof on the defence in such a case. It allows a defence only in the event that the interests of the United Kingdom would have been jeopardised if the defendant had not made the disclosure which caused him to be charged.
§ That is something which I should not expect to arise in the normal circumstances of today. However, I believe that provision should be made for the future. Laws are designed to meet hard cases. This amendment would deal with a matter where silence, instead of being golden, would be tarnished with the rust of guilt by association with acts, damaging to the national interest.
§ Whether this could happen is a question which may occur to some noble Lords. However, I think I have studied the history of other countries enough to make up my own mind. There is very little that the secret services cannot do if they are given sufficient power and are sufficiently provoked. Another question that arises is: what are the safeguards? Again, one has to consider whether the safeguards in the matter are adequate. The circumstances which one has to imagine where such a defence might be put forward under my amendment are, to be sure, outlandish. They envisage a situation where a secret service officer would be bent on wrongdoing and might be supported by the government of the day.
§ This would not happen under the circumstances which prevail now; but it could and it has happened in many other European and overseas countries. It depends on the dilemma that surrounds the very nature of secret services. On the one hand they have to be secret in order to do their work effectively. That point was made, quite rightly, on many occasions by my noble friends on the Front Bench. On the other hand, there is a particular need for tight control over the way they operate. If they are not kept on a very short leash, they can commit horrible offences which have a very serious effect on the citizens of the country. That must be borne in mind when looking to the future and making laws which we hope will last for many decades.
§ Secret services have been used to keep unpopular governments in power. They have also been used to keep control of oppositions, and to curb the inquiring nature of the press. The best way of keeping these services under control I believe is the self-policing of the secret services themselves. This amendment is designed to allow for that.
§ What safeguards do we have under the Bill, in the event of a service becoming unmanageable and dangerous to the national interest? We have to bear in mind of course the fact that the heads of both secret services are appointed by the Government. Although much reference has been made to the functions of the staff counsellor I understand he is also appointed by the Government and can be dismissed by the Government. He has no statutory position. Perhaps my noble friend could clear up a 735 point on which I am doubtful. Has the staff counsellor authority to deal with queries raised by members of the intelligence service, as well as by members of the security service?
§ It goes without saying that the Secretaries of State in charge of these services have of course a particular loyalty to the government of the day, while on the other hand the secret services are particularly forbidden from contact with non-government Members of Parliament and with the press. So what are we left with as a safeguard to prevent these bodies becoming hostages to ill fortune? I believe we are left with two possible recourses, if one envisages the possibility of a government who are not prepared to deal with the matter. One is the self-policing recourse, and the other is the courts. I believe that self-policing and the courts can provide the last ditch defence against a catastrophe which was referred to earlier this afternoon.
§ In this country the courts have always been kept separate from the Executive, and they can, I believe, provide the safeguard we are looking for. There are some who think that nothing involving the secret world should ever come to court. Indeed, to hear the remarks made by some this afternoon, one would think that a trial in such cases would almost be superfluous. But of course there have been trials involving the secret world, and there would be trials if anyone who contravened Section 1 of the legislation was brought to court and it was thought appropriate for punishment to be imposed by imprisonment.
§ It does not necessarily follow, with the greatest respect to my noble friend Lord Home of the Hirsel, that a public interest defence involves discussing the matter at issue in public. There have been a number of very well known cases involving security. I think of the George Blake case and the Klaus Fuchs case which took place in camera. I am not aware of anything that leaked out from those trials or of anything that emerged that damaged the national interest as a result of the fact that those trials took place, and that the closest possible attention was paid to the evidence, and that the accused had a proper power to defend himself. That is particularly important.
§ Such trials are of course inconvenient to the Government. There may be cases, as in the case of Anthony Blunt, Where it is just not possible to bring a case against a discloser because of the damage that would occur. However, for all that, it is possible to have court cases brought under a certain amount of secrecy. The recent Gibraltar inquest was a case in point. I am sure it was a matter of concern to the Government that this very delicate matter was discussed in a public inquest. However, an element of secrecy was introduced into that inquest. I believe it would have been far worse if the matter had not come court at all
§ Let us try to consider a little the other very large group of people who need to be protected under this Bill. I believe the emphasis has been a little too heavily weighted in favour of the need to protect the secret services. However, as I said on Second Reading, there is a need to guard the guards themselves. I cannot believe there is any more 736 effective way of guarding them than through the courts; but in order that the courts should have a proper way of managing this, there must be the open door for an officer who is convinced that by remaining silent he would cause harm to the national interest. He must feel able to break his silence and to make the disclosure referred to in my amendment. That would only be the case if of course every other recourse had been exhausted. I beg to move.
§ 6 p.m.
§ Lord Renton
My Lords, this is the same public interest defence, stated in plainer terms, and indeed in wider terms, and leaving the matter much more open for the jury to decide, than that rather elaborately defined public interest defence which was the subject of our first discussion.
Having listened to my noble friend with some admiration because of the moderation with which he expressed his case, I feel that the basic objections that were raised to the public interest defence in our first discussion apply with equal force to this one. Indeed, perhaps in a way the objections apply with greater force now. The decision would have to be left to the jury in very broad terms. Evidence would be given by the prosecution and by the defence on the question of whether the public interest had been affected, how badly it had been affected and other matters. I would be very surprised if my noble friend on the Front Bench found it possible to recommend to your Lordships that this amendment should be accepted.
My Lords, my noble friend Lord Renton has the uncanny aptitude of being right. I would find it difficult to advise your Lordships to accept this amendment. We have already had a full debate on the principle of the public interest defence. Indeed we have divided on it. I understand the concern of my noble friend in this matter. However, as my noble friend Lord Renton said, the same issues which we discussed on the earlier amendment apply to this amendment too. It is not a question of drafting; it is a matter of principle.
Like any other form of the public interest defence, this defence would mean that a person could make a disclosure which he knew would damage the work of the security and intelligence services. That is the point of the amendment. Once the damage has been done, the court would then decide whether or not he was justified in making the disclosure. If the court decided that he was not justified in making the disclosure, nevertheless the damage would have been done. Nothing would prevent that damage from being done, whatever the court decided later. Indeed everything in this defence would allow that damage to be ignored.
If the defence is established, it does not matter what harm has been done. So long as the defendant could satisfy a jury on the balance of probabilities—not beyond reasonable doubt—that, without his disclosure some interest of the United Kingdom would have been jeopardised, he would have to be acquitted. The security of the country could be in ruins; but that would be irrelevant.
Like any other form of public interest defence it sets the jury an impossible task. This particular 737 formulation would require the jury to decide whether the defendant had correctly identified some national interest which they think would probably have been jeopardised if he had not done as he did. The jury would have to try to imagine all the other possible hypothetical circumstances where action could have been taken and which might have avoided the jeopardy identified by the defendant. They would then have to try to decide whether any of these other options would have avoided the jeopardy. I do not see how the jury could know that. Indeed, I do not know how the defendant could know that. None of us could.
This defence would make any case unmanageable in court. Anyone contemplating some disclosure of security secrets would know that that would be so. In this central and vital area of the Bill, I do not believe that we should introduce a provision which is a recipe for uncertainty, for extraneous argument and for undoubted harm.
My noble friend referred to the staff counsellor—and I understand his concern—and pointed out that he is appointed by the Government. That is perfectly true but there is nothing sinister in that. It would be odd if he was appointed by the Opposition, by the Women's Institute or by anyone else. The fact that he is appointed by the Government does not make him a zombie who is bound to follow all Government diktats. He is independent, and that is why he is appointed, and he has access to the Prime Minster. Any member of the security and intelligence services can have access to him.
I hope that in the light of what I have said both now and in the earlier debate, and of the fact that your Lordships made a decision on the earlier amendment, that my noble friend will think it appropriate not to press this amendment.
§ Lord Bethell
My Lords, clearly I failed to persuade my noble friend of the merits of the amendment. He outlined very fairly the dispute between us. He indicated that in his view it was not appropriate for a jury to take into account the wider national interest when considering whether or not a person should be convicted of a disclosure relating to security and intelligence matters. I believe that that is the gravamen of the matter. I feel that the wider national interest can and should be relevant to this matter. I do not see any reason for putting the security services so high on a pedestal that they are able to do almost anything under the sun without any disclosure about their activities being authorised in such a way as would cause their status to be called into question. However, it seems that I have not been able to persuade the Government that that is correct.
I am glad to hear that the staff counsellor deals with queries from all members of the secret services. My noble friend pointed out that he is appointed by the Government. I take it that he can also be dismissed by the Government and that another staff counsellor can be appointed in his place, which could come about in the outlandish circumstances which my amendment is designed to cover.
Bearing in mind that we have had a very full and interesting debate earlier this afternoon on a matter 738 not very far removed from the point of my amendment, I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ 6.15 p.m.
§ Earl Ferrers moved Amendment No. 6:
Page 2, line 18, at end insert—
("( ) Subject to subsection (7) below, a notification for the purposes of subsection (1) above shall be in force for the period of five years beginning with the day on which it is served but may be renewed by further notices under subsection (6) above for periods of five years at a time.").
§ The noble Lord said: My Lords, in moving Amendment No. 6, I should also like to speak to Amendment No. 7. The amendments are moved in fulfilment of a commitment which I gave to the noble and learned Lord, Lord Elwyn-Jones, in Committee.
§ Your Lordships will remember that the noble and learned Lord tabled an amendment which would have provided for notification to lapse after four years unless revoked or renewed. I detected a not inconsiderable swell of opinion among your Lordships in support of that proposal. After careful consideration of the administrative and practical implications, I am glad to say that, in the light of the Committee's debate, I propose an amendment on those lines.
§ The only difference of any substance between this amendment and the one in Committee is that we propose that notification should lapse after five years rather than four. This would be more straightforward administratively since it fits better with posting periods and with the general cycle for the review of security clearances. Since I recall that the noble Lord, Lord Mishcon, suggested that a period of six years would be acceptable, I have reason to hope your Lordships will be satisfied with five. I beg to move.
§ Lord Elwyn-Jones
My Lords, we are most grateful to the noble Earl for having met our objection to the indefiniteness of the earlier provisions with these precise terms. We accept what is proposed with pleasure, particularly as Amendment No. 7 makes provision for the notification to be terminated at any time if those who are responsible for these matters think fit. Therefore I gratefully accept the amendment which the noble Earl proposes.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 7:
Page 2, line 19, leave out ("shall be in force until") and insert ("may at any time be").
§ On Question, amendment agreed to.
§ Clause 2 [Defence]:
§ [Amendment No. 8 not moved.]
§ Earl Ferrers moved Amendment No. 9:
§ Page 2, line 41, leave out ("jeopardizes") and insert ("endangers").
§ The noble Lord said: My Lords, in moving Amendment No. 9, I should like also to speak to Amendment No. 13. The amendments fulfil an undertaking which I gave in Committee in response to a suggestion by my noble friend Lord Renton.
§ My noble friend, supported by the noble Lord, Lord Mishcon, and the noble Lord, Lord Hutchinson, suggested that a jury would be more 739 readily able to understand and apply a test that the disclosure "endangers the interests of the United Kingdom abroad" than the present test that the disclosure "jeopardizes" those interests. That test is in the defence harm test in Clause 2 and in the international relations harm test in Clause 3.
§ I undertook to consider my noble friend's suggestion, and these amendments are the result of that consideration. I am happy to accede to your Lordships' view. I am grateful to my noble friend for his helpful suggestion. I beg to move.
§ Lord Renton
My Lords, I am grateful not only to my noble friend but also to the noble Lord, Lord Mishcon, and the noble and learned Lord, Lord Elwyn-Jones. We were in agreement on this matter. It is good to find that the Government are also in agreement with us.
§ On Question, amendment agreed to.
Lord Renton moved Amendment No.10:
Page 2, line 41, after ("Kingdom") insert ("at home or").
§ The noble Lord said: My Lords, in moving Amendment No. 10, I should also like to speak to Amendment No. I. The two stand together. The purpose is to add the words "at home or" before the word "abroad" where it occurs in line 41 and line 45.
§ I dare to hope that we may again find that there is agreement across the House on this point and that it may even find a sympathetic place in the mind of the Government.
§ The clause deals with defence secrets. I have always understood that the main purpose of defence is the defence of the United Kingdom. It could be said that the most important duty of government is to defend the United Kingdom. But it is strange to find that, under this clause, no offence is committed unless a disclosure relating to defence, which is broadly defined in subsection (4), is damaging. It is not damaging unless it endangers the interests of the United Kingdom abroad or of British citizens abroad. I abbreviate for the sake of clarity.
§ Surely it is wrong that a civil servant or anyone else covered by the clause should not be thought to commit an offence if he divulges secrets about home defence. Any of those matters in subsection (4) relating to defence could and should include home defence; for example, ammunition depots and their location, the location of reserves of equipment and plans and measures for moving reserve forces in the event of an emergency.
§ I find it strange that civil servants are absolutely free, subject only to their own discipline, which I agree is important, to divulge secrets about matters concerning the defence of the United Kingdom itself. They are liable to commit an offence only if those matters relate to the interests of the United Kingdom abroad or the safety of British citizens abroad. It seems to me to be such a clear, short point that I do not think it is necessary to argue it any further and I hope for some sympathetic consideration. I beg to move.740
§ Lord Boyd-Carpenter
My Lords, I shall be interested to hear what my noble friend has to say because my noble friend Lord Renton appears to have made a point of some significance and drawn attention to what appears to be a deficiency in the Bill. His amendment could instead have simply proposed to delete the word "abroad" in lines 41 and 44, which would have had the same effect.
However, I am interested in the substance of the matter. It is perfectly easy—only too easy—to damage the defence interests of this country in this country, or to damage the interests of our citizens in this country. The noble Earl may give us some good reason for that exclusion; but, on the face of it, it calls for some explanation. I am only surprised that the Bill has come this far without someone else having noticed the point.
§ Lord Monson
My Lords, I am sure the noble Lord is right in saying that the main purpose of defence is, first and foremost, to defend the United Kingdom at home rather than abroad; but I still hesitate about the amendments.
My reason for hesitating is the lack of any satisfactory explanation until now of the ominous incident which occurred near Salisbury in the first fortnight of January 1987 and which I explained in some detail in Committee. Perhaps I may remind noble Lords of what happened. The incident concerned innocent civilians being illegally detained by members of the armed forces following a traffic accident involving an army convoy which they happened to witness while going about their lawful business. Clearly, there appears to have been some sort of cover-up. It is also clear that a crime—albeit a minor crime—has been committed because it is illegal for anyone, unless he is a police constable, to arrest a member of the public on a public highway.
If the public interest amendment had been agreed in respect of Clause 2, we would be in a position to know about the incident. But, as it has not been agreed and does not look likely to be agreed, we may never hear the truth of what happened if the Government are not prepared to offer any explanation.
§ Lord Hemingford
My Lords, perhaps I may add that it is extremely difficult if, for example, one is a diplomatic or defence correspondent. I know that there is a defence which states that, if one is not aware that one is endangering the security of a British citizen, that is a defence. But the House should be aware of the extraordinary difficulty of dealing with that kind of language when one is trying to report those matters. If one takes the case of British citizens held in the Middle East, for example, it is almost impossible to know what may endanger them. If one took the widest possible construction of the clause, it would make almost any form of writing on the subject impossible.
My Lords, my noble friend Lord Renton was so carried away with the unanimity that occurred in respect of the previous amendment that I believe he hoped that it would continue with this amendment. I find it a trifle disconcerting that both my noble friends Lord Renton and Lord 741 Boyd-Carpenter take a view which, as I am bound to try to explain to noble Lords, I cannot take.
My noble friend Lord Renton probed as acutely as he always does the drafting of the tests of harm in Clause 2(2)(b). I understand the concern that he has expressed; but I hope to persuade noble Lords, including my noble friend, that there are good reasons why we should not widen the test in the way that he has suggested. My noble friend said that this was just a clear, short point. I hope to be able to tell him that it may be a clear point, but it is not quite so short as he envisages.
We believe that the scope of the harm test in Clause 2(2) is right because we believe, in relation to the disclosure of a matter relating to defence, that the harm which ought to require the protection of the criminal law is principally the damage to the capability, lives and equipment of our armed forces. That is set out in Clause 2(2)(a) of the Bill. That provision covers home defence matters whose disclosure would damage the capability of our armed forces.
I think that the noble Lord's concerns are covered by the present provision, but his amendment would go very much wider than that. There are circumstances in which a particular disclosure relating to a defence matter affects this country's interests abroad. That is because defence matters have a clear international dimension. In relation to this particular test, which is set out in Clause 2(2)(b), we think that it is right to require the prosecution to focus on the dangers that a disclosure may cause to this country's interests abroad.
These amendments would change the focus completely. They would allow the prosecution to argue that the disclosure endangered some domestic policy or interest which went far beyond the capability of our armed forces. They would mean that if the prosecution could show that a disclosure relating to defence jeopardised or endangered any domestic interest of our country, or was likely to do so, or could be said to put in danger any of our citizens in this country, then an offence would have been committed.
This goes to the heart of the basic structure and approach that we have adopted in this legislation. We sought to provide protection for only six areas of information and in five of those areas we have provided tests of harm relevant and specific to each type of information. That has been the case for the tests of harm in the defence clause as in the other clauses. Your Lordships have discussed the detail but have, I think, welcomed this central principle.
My noble friend's amendments would in fact go back on that by providing a very wide test of harm, far wider than the matters that this clause protects; namely, defence. There is no particular, overwhelming reason why it would be right to single out defence as the one area where disclosure might have some ill effects on our affairs in this country or our citizens here. If we had thought it right or necessary to provide that sort of general protection under the criminal law, then in principle it should apply to a much wider range of information than defence; perhaps any official information which could be 742 shown to have this effect. We should then be heading back in the direction of Section 2 and I do not think many of your Lordships would welcome that. I believe that many noble Lords would be concerned if the Government were to accept an amendment which had the effect of extending the criminal law in that way. Some noble Lords at least would suspect that this was a device to protect From disclosure information relating to the domestic policies of the government of the day. I can all too easily imagine the speeches that would ensue.
I am sorry to disappoint my noble friend but I hope that it will reassure your Lordships to know that we do not think that it would be right to widen the harm test relating to disclosure about defence in the way in which these amendments propose. I hope that on reflection my noble friend will consider this amendment goes rather wider than he thought and possibly wider than is desirable.
§ 6.30 p.m.
§ Lord Renton
My Lords, I shall not attempt to divide the House on this amendment or even seek to have it negatived. I shall ask my noble friend in the light of the argument that he has put forward to reconsider the matter between now and Third Reading. He relies upon the wording of subsection (2)(a) and claims that that is wide enough to make it unnecessary for subsection (2)(b) to refer to the endangering of the interests of the United Kingdom at home or the interests of British citizens at home.
I cannot accept that argument. Quite frankly the wording of subsection (2)(a) is very much narrower than the definition of "defence" in subsection (4). For example, that subsection refers to,plans and measures for the maintenance of essential supplies and services that are or would be needed in time of war".Are we to assume that it is only those supplies and services which relate to matters happening abroad and not matters happening at home that the Government have in mind as being important and therefore creating an offence? The trouble lies in the drafting. So often one comes back to drafting. Difficulties can be caused by drafting being over-zealous when a much more simple draft would fulfil the requirement without giving rise to over-subtle distinctions.
I shall withdraw the amendment, but before doing so I shall ask my noble friend, in the light of the short discussion that we have had, to be so good as to consider this matter again between now and the next stage.
My Lords, if I may have the leave of the House to speak again, certainly I shall consider what my noble friend has said. I shall write informing him of my conclusions.
§ Amendment, by leave withdrawn.
§ [Amendment, No. 11 not moved.]
§ Clause 3 [International relations]:
§ [Amendment No. 12 not moved.]743
§ Earl Ferrers moved Amendment No. 13:
§ Page 3, line 30, leave out ("jeopardizes") and insert ("endangers").
§ On Question, amendment agreed to.
§ Clause 4 [Crime and special investigation powers]:
§ [Amendment No. 14 not moved.]
§ Clause 5 [Information resulting from unauthorised disclosures or entrusted in confidence]:
§ [Amendment No. 15 not moved.]
§ Clause 6 [Information entrusted in confidence to other States or international organisations]:
§ [Amendment No. 16 not moved.]
§ Clause 8 [Safeguarding of information]:
§ [Amendment No. 17 not moved.]
§ Earl Ferrers moved Amendment No. 18:
§ Page 7, line 47, after ("servant") insert ("or government contractor").
§ The noble Earl said: This is a drafting amendment to clarify the effect of Clause 8(1) as it applies to a government contractor who has been notified under Clause 1(6). The effect of the amendment is to make clear that where a notified person is a government contractor, his obligations under Clause 8(1) in respect of the handling of documents in his possession are exactly the same as those of any other government contractor. This brings the provision exactly into line with the arrangement for lawful disclosures set out in Clause 7. I beg to move.
§ On Question, amendment agreed to.
§ The Deputy Speaker (Lord Murton of Lindisfarne)
My Lords, I should say that if Amendment No. 19 is agreed to it would pre-empt Amendments Nos. 20 to 22 and I should not therefore be able to call them.
§ Lord Mishcon moved Amendment No. 19:
§ Page 8, line 18, leave out subsection (6)
§ The noble Lord said: My Lords, I have an idea that this amendment will not be agreed to and therefore as we have just been told any consequent destruction of the following amendments will not occur. At the previous stage of the Bill I brought before the Committee an amendment in which I tried to make clear that I asked for the omission of this subsection because it was capable not only of very many meanings but also no meaning at all. I was joined by other noble Lords in that belief and the noble Earl very courteously said that in the light of what he had heard and seen when looking again at the clause he would consider a rewording. I am delighted to observe that in fact a rewording is now on the Marshalled List and it seems to me to be quite acceptable. Therefore when we reach that point it will certainly have my consent and approval. I am grateful to the noble Earl.
Lord Campbell of Croy
My Lords, perhaps I may raise a question of procedure. When the noble Lord moved the very first amendment today he did not say that other amendments would be grouped with 744 it. I spoke immediately after him and said that I assumed that they were so grouped. That caused a slight misunderstanding between us later on. According to the grouping of amendments that has been circulated it is suggested that government amendments, Amendments Nos. 20 to 23, should be discussed with this amendment. I wonder whether that is so.
§ Lord Mishcon
My Lords, I shall put the matter in order by formally moving this amendment. In my remarks I have already encompassed the other amendments. I beg to move.
My Lords, I am glad that the noble Lord, Lord Mishcon, has made the matter clear. I thought that he did not intend to move his amendment. He has now moved it and will later withdraw it, so I understand. I am grateful to him for that.
When we debated the noble Lord's amendment in Committee I recall that he took me to task for saying that I found him a difficult person to satisfy. He demurred and said that he did not know that he was difficult to satisfy. What is more he threatened, in terms of the utmost reasonableness, of course, to come back if we did not alter the wording of this subsection. I found that such a frightening prospect that I thought I must try to do something about it.
I suggest that the amendments in my name alter the wording of this subsection and meet the noble Lord's concern. In fact we propose to go rather further than he suggested. We propose to deal directly and precisely with the one point that the noble Lord made in three separate interventions during the Committee's consideration of the amendment. I now have the evidence to establish what I said in Committee. I had thought that the noble Lord was a difficult person to satisfy. Now I realise that he is not difficult to satisfy because he has removed his amendment.
The offence in Clause 8(6), as I explained in Committee, is an essential part of the protection which the Bill provides against unauthorised disclosures of official information which harm the interests of this country. It deals with the situation where a person does not himself disclose information which is protected by the Bill but instead tells another how to get unauthorised access to it. The simple proposition on this offence is this. It is wrong to disclose official information which you well know would allow people access to protected information which they have no right to have.
Without this offence we leave an indefensible gap in the protection which the Bill provides for this country's interests. It would mean that anyone could, with impunity, disclose official information about our security procedures and arrangements for safegurding protected information. It allows a person to say: "I will not tell you that information, but I will tell you how you might be able to get it for yourself."
We considered carefully, as I promised we would, the comments and criticisms of my noble friend, Lord Renton, and the noble Lord, Lord Mishcon, on the details of this provision. The noble Lord, Lord 745 Mishcon, pressed me hard—as he usually does—to introduce a requirement on the prosecution to prove that what was disclosed was indeed official information. My noble friend Lord Renton suggested that the draftsman's skills might be deployed to bring out more clearly the essential nature of the offence. The amendments which stand in my name respond directly to both these requests.
Amendment No. 22 introduces a requirement of proof that the person making the disclosure either had the information in his possession as a Crown servant or government contractor or knew or had reasonable cause to believe that what he disclosed was official information.
The other amendments standing in my name have the effect of putting the essence of the offence in what is now Clause 8(6), while details about proving that the information is official are now in a separate subsection. I hope that this is helpful in bringing out as clearly as we can the essential nature of the offence. I shall later beg to move the other amendments that are in my name.
§ Lord Mishcon
My Lords, in the light of the gracious remarks made by the noble Earl, which I believe I followed, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Deputy Speaker
My Lords, perhaps I may suggest that, with your Lordships' permission, we take Amendments Nos. 20 to 23 together.
§ Earl Ferrers moved Amendments Nos. 20 to 23:
§ Page 8, line 18, after ("any") insert ("official").
Page 8, line 20, leave out from beginning to ("can") in line 22. Page 8, line 27, at end insert—
("( ) For the purposes of subsection (6) above a person discloses information or a document or article which is official if—
§ Page 8, line 29, leave out ("(b)").
§ On Question, amendments agreed to.
§ 6.45 p.m.
§ Lord Bethell moved Amendment No. 24:
§ After Clause 8, 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
- (b) 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: My Lords, I beg to move Amendment No. 24. The amendment has come to be known as the historians' amendment since it was moved in my absence abroad two weeks ago with such skill and erudition by my noble friends Lord Thomas of Swynnerton and Lord Dacre. Those two learned noble Lords—although not "learned", strictly speaking, in the sense used in your Lordships' House—argued most persuasively for a relaxation of, or an amendment to, the Bill that would, in certain circumstances, and with the authorisation of the Secretary of State, allow disclosures to be made for historical works. It laid down that the Secretary of State should withhold permission for such disclosure if, and only if, the national security, the national interest, or such similar interest, was in danger of being damaged.
§ This amendment in no way tries to bring forward the publication of material which could in any circumstances cause damage either to the services or to the national interest. On the contrary, the first part of the amendment makes it clear that only the Secretary of State may give authorisation. It is true that in many other countries that would not be the case. For instance, in the United States it would be possible for a judge to give authorisation for the release of material of this nature. However, for better or worse, we have gone down another path, and this matter will reside in the hands of the Secretary of State if noble Lords decide to accept this amendment, or indeed if not. However, if noble Lords accept this amendment it will make it clear that the Secretary of State should give permission, unless he is satisfied that damage will occur.
§ In moving this amendment I take comfort from the letter written to me on 29th July by the Home Secretary, Mr. Hurd. In that letter, he stated that security is the essential criterion for decisions taken over disclosures either for historians or by former officers who wish to become latterday historians. He went on to say that with the passage of time it will increasingly be possible for them—that is former secret service officers—to obtain such authorisation.
§ I should be grateful if my noble friend could indicate to me whether or not the observations by the Home Secretary still stand. They are that security is the essential criterion; and that it is hoped that with the passage of time authorisation can more often be given. Indeed, it is quite right that security should be the essential criterion. However, are there any other criteria that the Government will bear in mind? Perhaps my noble friend will tell us something about that.
§ I have been assured that embarrassment to a government, or to the Government, would not be a criterion. Indeed, embarrassment to Ministers has never been, and should never be, a reason for withholding information, in particular in the light of history. However, will political expediency be a reason for withholding permission? It is a case that could be argued. It would be good if we can hear from a Minister on what basis permission will be given to former officers to make disclosures to historians. If we knew where we stood, it would be easier to proceed along the path that the Government have suggested.747
§ The problem has been that writers and historians live in such an uncertain world that we do not know what is or is not permitted. Unless one has had former connection with these services—as has my noble friend Lord Dacre, but which I have not—one does not know to whom to go in order to see whether a book or article should or should not be written on the basis of a disclosure. I hope that my noble friend will be able to indicate how historians or writers who have no connection with these services should go about trying to obtain permission for a disclosure. Should they write to the Home Secretary or to the Foreign Secretary asking for permission to approach an individual, a former officer; or should they go to the officer in the first instance, and would it eventually be left to him or her to seek the permission that is necessary in order that the disclosure may be made?
§ In either event, it will be a very cumbersome procedure and will be a considerable departure from the custom that has prevailed for the past 20 or 30 years. The Government have stated in recent weeks that permission for a disclosure will be given only in rare and exceptional circumstances. If that is the case, there will be a very drastic reduction in books and publications relating to the secret world. Since the Second World War there have been many hundreds—perhaps even thousands—of books relating to this world. One thinks of all the books on the Enigma machine; such books as The Man Who Knew Too Much, about secret operations during the Second World War.
§ I imagine that under the Bill disclosure, even on Second World War matters, will have to be authorised in each case, even if it is merely to check a date with someone who was in military intelligence or with a special operation in Cairo or Italy in 1944 or 1945. Permission for disclosure will have to be given. The system will be cumbersome, but clearly historians will have to do it if they do not want to break the law themselves by conspiring with a former intelligence officer, or by encouraging that officer to break the law by making the disclosure himself or herself.
§ This matter has continued after the Second World War. It becomes much more delicate when dealing with questions surrounding the Cold War, the 1940s and the 1950s. It is here that most books involving the secret world have been written. However, I have never heard it suggested that such books have damaged the secret services or the national interest. On the contrary, such books often teach us, the British people, lessons which we would do well to remember. I hope that the lesson of history will not be forever annulled as a result of the Bill.
§ If your Lordships approve my amendment the lessons of history can still be taught and absorbed, and sounder and better government will, with any luck, be the result of having learned those lessons.
§ I wonder whether my noble friend has considered the following argument. It is not possible nowadays to assume that any book which touches on the secret world is authorised by the Government, or contains any authorisation. Some books contain material which has been revealed by former officers simply 748 on their own authority or because of their conscience. The Government are therefore in the happy position of being able to say that they do not approve of the book or publication, that they had nothing to do with it and that they would rather the book had not been published. They are able to issue a dementi. After the Bill is enacted it will not be possible for the Government to have that let-out because the assumption will be that any reference to the secret world has had the Government's approval and any book which contains such information has the Government's imprimatur. The Government may not always find that a convenient state of affairs.
§ However the decision has been taken. My amendment does not try to challenge the basic rule that the Secretary of State should be the arbiter and that the Government should decide, no doubt on the advice offered by former service members. It makes sense for us to lay down exactly who is responsible for authorising disclosures, and under my amendment that would be the Secretary of State. I believe it is right to lay down what the Government should bear in mind in deciding whether or not a disclosure should be made. There are certain matters which should not be taken into account when such a decision is made, such as embarrassment to a Minister or former Minister. There are other factors which definitely should be taken into account, such as those relating to security and the others in the second paragraph of my amendment. If the amendment is passed I believe that it will considerably clarify the situation. I commend it to the House. I beg to move.
Lord Home of the Hirsel
My Lords, when we discussed an almost identical amendment at Committee stage in the unavoidable absence of my noble friend, my noble friend Lord Dacre was concerned lest facilities which had previously been available to ex-members of the secret services would be adversely affected by the Bill. In that context I hope I am right in thinking—and my noble friend will be able to tell me whether I am right or wrong—that there has been no change and that the Bill does not alter the circumstances for those people. The machinery inside the services for such a member to consult is there, including— —
§ Lord Bethell
My Lords, I believe my noble friend is quite correct that those former members of the services should not be adversely affected by the Bill, provided that the criteria remain the same. Those who will be affected are historians who have had no connection with the services but who seek information on past events from former members of the services.
Lord Home of the Hirsel
My Lords, I thought that earlier my noble friend was concerned with the ex-members of the services. I should like to hear my noble friend Lord Ferrers confirm whether I am right or wrong. Consultations will be open to such people. They are the people with whom I am concerned. I hope that such consultation will, if necessary, be with the Secretary of State.
749 I must confess that I do not much like subsection (2) of my noble friend's amendment. If the Secretaries of State are to be available for consultation it is much better to leave it to their discretion and judgment without any strings attached. Therefore I am afraid that I could not support my noble friend's amendment as it stands.
Lord Campbell of Croy
My Lords, my noble friend Lord Home said that this amendment was almost identical. I believe it is exactly identical to the previous Amendment No. 40 which was discussed in Committee. I understand why it is being put forward again because this is a matter of great concern to historians and writers. In my view, however, I do not think that it is necessary to write it into the Bill. It is past and present practice for proposed books, memoirs, broadcasts and articles to be cleared beforehand. If this is now put into the Bill in this form it could cause some confusion by inserting something which is already practised.
Vetting is carried out and requests are made to the authors who have submitted them to omit items from manuscripts. I was involved in this procedure when I was an official many years ago. I have said on previous occasions, and I repeat, that the important matter is that the book should not be delayed. Those who are carrying out the necessary screening should not cause the authors and publishers to have to wait months before they receive a reply.
This procedure operates in government departments such as the Foreign and Commonwealth Office or the Ministry of Defence. My noble friend Lord Bethell said in introducing his amendment that authors who were not familiar with the system did not know whom they could approach. My advice to anybody who asked me—no doubt my noble friend on the Front Bench will be able to give his views—was that anyone in either House of Parliament could go straight to a Minister; otherwise authors would have to make inquiries and get in touch with the Permanent Under-Secretary either at the Home Office or the Foreign and Commonwealth Office. That person and his staff would consider any request and, if it was appropriate, they would put the author in touch with the right person to advise him.
In our last debate on this matter the noble Lord, Lord Harris of Greenwich, referred to American practice and to the CIA. American practice is broadly similar to our own—the principle of submitting text for clearance beforehand. I have discussed this with former members of the CIA, including the admiral whom he mentioned in his speech in our debate in Committee. The CIA has an open, non-secret part and a covert, secret part. That is a way of helping to conceal the secret part. In contrast, in the United Kingdom our intelligence service is secret. It has no front door with its name on it or other open or visible public face.
The security service does have a public identity, and that is now being improved in the Security Service Bill before your Lordships' House. The security service is becoming a statutory body for the first time, but there is no question of anything like that for our intelligence service. The work of both 750 services is secret, and much of it must remain secret for a long time. A 30 or 50-year rule has no relevance in that.
I believe that it is not necessary to add this new clause to the Bill. If, nonetheless, it were positively inserted and appeared to be a statutory addition, this might well encourage publishers and the media to press for memoirs and other accounts on subjects that should not be mentioned or described in public.
§ 7 p.m.
§ Lord Elton
My Lords, I also was concerned at the Committee stage on this Bill that we might be faced with a new restriction that ought to be resisted, and I had supposed that this amendment was designed to resist a change. I am persuaded however that the provisions of the Bill alter nothing in respect of what my noble friend addresses in his amendment: the particular concern that I had over what might become of a Crown servant when he ceased to be a Crown servant, for which I could see no provision in the Bill. The Bill provides for him in Clause 7:For the purposes of this Act a disclosure by any other person is made with lawful authority if … it is made … in accordance with an official authorisation.The route is there, and what my noble friend's amendment addresses is how it should be traversed.
This is one area in which one must, with regret, accept the need for secrecy, and a secret control of secrecy. Whereas subsection (1) of my noble friend's amendment may add nothing or take nothing away, subsection (2) sets out criteria that could only be discussed and tested in the open. They are of no use if they are not discussed and tested in. the open, and I have sufficient experience of confidentiality of other sorts to know that it is precisely by that sort of testing of apparently innocent material (or, should I say, innocuous material) that dangerous material is revealed. Therefore, I would not ask my noble friend to be encouraged by my earlier contribution. Like my noble friends Lord Home and Lord Campbell of Croy, I would have to go against him on a decision.
§ Lord Hutchinson of Lullington
My Lords, I wonder whether the noble Earl in replying to this amendment would tell the House the present guidelines? The noble Lord, Lord Campbell of Croy, said that there is a procedure and that it operates perfectly well. You have only to go to the Permanent Secretary, take your book, and everything works like clockwork. The trouble is that it does not work like clockwork. In fact Mr. Wright's book was offered to the appropriate persons in the Government and they refused to look at it. They would not in fact take any steps about it at all when it was offered to them.
The whole waters have been muddied by the Home Secretary saying, so far as I understand it, that authority will only be given in rare and exceptional circumstances. If I may say so with great respect, that seems to make it almost impossible for people to publish articles, or write books, in the sense that the noble Lord, Lord Dacre, explained at the Committee stage.
751 If the Government resist the amendment, could they not come out into the open and lay down perfectly straightforward guidelines to persons who wish to publish memoirs or publish articles? I quite see that if the Home Secretary himself is going to read all of these articles and books, he is going to have an even fuller time than he has already looking after all the other things he has to look at. It is not a very practical suggestion.
However, it is a kind of litmus paper of the Government's attitude. This is supposed to be, "Now we have cleared away all this secrecy. Now we are limiting it only to these specific areas. We now are much more open than we ever have been before". Surely this is a litmus paper, because it really does not matter if people write articles and books in the sense that the noble Lords, Lord Dacre and Lord Thomas, explained. It does not matter in a whole area of the work of these people that they should write articles and books and inform the public not about secrets but about all sorts of matters that govern what they do, without showing in any sense the specific secrets with which they are involved.
There is a great deal of interesting information, and why is it that in the CIA library there are hundreds of volumes, whereas over here there are practically none except leaks, leaks, leaks? If you have only rare and exceptional circumstances then I would suggest to the noble Earl that we are going to get these journalists, and this investigative journalism, continuing and continuing, and we are going to have leaks, and ideas about what goes on and what does not go on. If you could only open it up and have some proper guidelines, you would get rid of all that.
§ Lord Mishcon
My Lords, I was going to say something along the lines of what the noble Lord, Lord Hutchinson, has just said; and I was going to ask the Government whether it would be prudent not just to answer this amendment purely in the negative but to see to it that everybody knew when a consent would be given, because broad guidelines on procedure and in regard to policy could be issued.
I saw the danger, if I may say so to the noble Lord, Lord Bethell, in subsection (2) of his amendment, because I realised that that would open the door to a judicial review. I should have thought it would be objectionable—and I freely admit it—if the Secretary of State were challenged in the courts that he had not complied reasonably with the provisions of the Act in the procedure that he had adopted. There could be difficulties.
Having said that, I would hope that there could be some give by the Government on this. What they are doing is closing the mouths of people for life in regard to matters which are part of our history and which could be harmless from the point of view of national security.
However, I do not like a provision which enables somebody to go to the court challenging the Secretary of State's ruling, as they could if subsection (2) stood.
My Lords, we had a debate on exactly the same amendment at Committee; but unfortu- 752 nately my noble friend Lord Bethell was unable to be present, and I understand his reason for putting down the same amendment today. He will understand if the remarks that I make are essentially the same as I made then.
I am glad to have the opportunity to explain again the Government's position on the authorisation of memoirs and other books by members, and former members, of the security and intelligence services. Let us remember that is what we are talking about: namely, the writing of books and the disclosure of information by members and former members of the security and intelligence services. I realise that my noble friend has a perfectly legitimate interest in that.
I understand the position from which my noble friend Lord Bethell and others of your Lordships come to this matter. I recognise their concerns. I should not wish to take issue with them were it not for very good reasons. I know that your Lordships are fair-minded people and so I ask the House to consider very carefully whether this is really a matter which should be dealt with in primary legislation in the way proposed in this amendment.
I want first to give your Lordships a clear assurance about the drafting of the Bill because I know there has been some misunderstanding and misapprehension about that. The Bill does nothing to change either the steps which must be taken in order to obtain authority for disclosures or the policy for considering the memoirs of serving or former members of the security and intelligence services, or indeed of any other Crown servant. That was the point which my noble friend Lord Home was concerned to have reiterated, and I give your Lordships that assurance.
The Bill allows for disclosures to be made by serving Crown servants and by notified people, provided that such a disclosure is made in accordance with a person's official duty. It also allows for former Crown servants, including former members of the security and intelligence services, to make disclosures with lawful authority if they have an official authorisation for their disclosures.
The arrangements for former Crown servants to seek such authorisation are of long standing. They involve the former Crown servant obtaining the necessary authority from his former department or agency. The new law does not require any change to these arrangements or in their operation. The same principle stands. I think most of your Lordships will agree that it is right that there should continue to be a requirement to obtain authority for the disclosure of such matters. The Bill provides for such authority to be given.
There is, I venture to hope, nothing between my noble friend Lord Bethell and the Government on that central point. Authority can be given for publications. This amendment is not necessary to achieve that. The rule for such publications will also remain what it has always been: no member or former member of one of these services should plan publications without seeking and obtaining authority from his current or former employer to do so. It is right, however, that I should make clear to your 753 Lordships that the presumption will continue to be—just as it has been in the past—against giving authority for detailed accounts to be published of the work of the security and intelligence services. It will continue to be the exception and not the rule for authorisation to be given in these circumstances.
In making this clear in previous debates I am afraid that some noble Lords may have believed that we were breaking new ground. This is not the case. There has never been a convention that members and former members of the services should commonly publish accounts of their work. Permission has in the past only been given in rare and exceptional circumstances. That will continue to be the case in the future.
§ 7.15 p.m.
§ Lord Bethell
My Lords, perhaps my noble friend will give way. I accept that in the case of former members of the services permission has been given only rarely. However, does he not agree that since there have been hundreds and maybe even thousands of books and publications based on disclosures made to non-former members by former members, forming part of their work, clearly permission for such disclosures must have been given not rarely in the past but extremely frequently to make up the body of work available on the secret world in the libraries? Can my noble friend assure us that that practice will not be changed and that permission for disclosures will be given reasonably frequently?
My Lords, I can only give the undertaking which I have given; namely, that people will have to ask permission if they are members or former members of the security services. The situation will be considered on a case by case basis, but permission has been given and will be given only in rare and exceptional circumstances.
My noble friend Lord Bethell asked where historians go for guidance. There is no change in the present procedures resulting from this Bill. A historian who is not an ex-member of the security and intelligence services could approach the secretary of the D-Notice Committee, or, as my noble friend Lord Campbell said, the head of the relevant government department. I do not believe there is any great mystery or difficulty about that and the Bill does not seek to change the position.
The amendment tabled by my noble friend breaks new ground and it would do so in ways which are, I suggest, undesirable. I believe it was the noble Lord, Lord Hutchinson, who asked whether or not it would be helpful if people were able to write more about these matters and that, therefore, disclosures should be more frequent to enable that to happen. The whole purpose of the security and intelligence services and the whole purpose of this Bill is that those facts should not be written about save in rare and exceptional circumstances. I agree that for a writer that is very convenient, but I believe that that is proper in the interests of the nation.
My noble friend's amendment breaks new ground in these ways. First, it would introduce a formal 754 statutory procedure for authorising publication. That procedure would apply only to members and former members of the security services and to notified people. It cannot be right to create such elaborate statutory procedures ensuring and encouraging full-blown publications. Secondly, the amendment would create a presumption in favour of publication. I have already explained to your Lordships that in our view the presumption must be against publication.
Thirdly, the creation of such a statutory presumption would inevitably act as an encouragement to those who may be tempted to breach their obligations. One noble Lord—I cannot remember who—said that there would be an encouragement to those outside the intelligence and security services to persuade members and former members of those services to say more than they should. That is bound to be an effect of my noble friend's amendment.
Fourthly, I want to confirm that the criterion for authorisation is, as it has always been, a judgment about whether publication would harm national security directly or indirectly and not a consideration of possible embarrassment. I hope your Lordships will find that reassuring. However, I do not believe that it can be right to institute a statutory procedure which requires that formal statutory criteria must in all cases always be applied to every jot and tittle of what someone would like to publish. What scope for argument that would introduce! What pressure it would put on the Secretary of State always to have to tell the author in detail exactly why national security would be damaged when perhaps, having been so long away from the service, he really ought not to know. It would be unnecessary and, I suggest, undesirable to delve into the nitty-gritty when the publication is manifestly not the sort of thing which could ever be published in any form. We must avoid these difficulties, and we can do so on the basis of the present Bill. I repeat therefore the assurance which I gave earlier. While authority to publish will be given only in rare and exceptional circumstances, all relevant plans and proposals, if properly raised at the right time, will be carefully considered and decisions made on a case by case basis.
My noble friend's amendment would go much further than that. It suggests that the relationship between a member of the service and his employer, or former employer, in this matter should be regulated by statute. That would not be right. As my noble friend Lord Home said, it should not be a matter for legislation. After the most careful consideration, following the debate in Committee, that remains our view. A statutory provision is not the way in which we have handled such matters in the past and I suggest that it is not the right or sensible way to go about it in the future.
There is no reason to conclude that authority to publish will be withheld in future in every conceivable case. I hope that I have given a clear and reasonable explanation and assurances. Of course, the interests of history and of historians need to be recognised—I accept that—but so too do the interests of the continuing safety and security of the nation as a whole. There is nothing particularly new about that and nothing in the Bill which requires or 755 suggests any change in our approach. Therefore, with that explanation I hope that my noble friend will feel able to withdraw his amendment.
§ Lord Bethell
My Lords, I am grateful to my noble friend for that very full explanation of why he feels unable to support the amendment. I am grateful to him also for clarifying a number of points raised in my opening remarks and in the course of this debate. I am particularly grateful to him for pointing out that historians and writers who are not former members of the services may go to the D-Notice Committee. That will be of interest to many of my colleagues when writing history.
I was also a little encouraged by what my noble friend had to say about the rare and exceptional occasions when it will be possible for a disclosure to be authorised. It is clearly difficult for my noble friend to say what is rare and what is exceptional. However, since he said that in the context of an indication that previous practice would be maintained, I am encouraged at least to hope that from time to time books will continue to be written by former members of the service which include material made available to them with permission; indeed, that the historian will not be brushed aside by this legislation. I fully accept, as my noble friend said, that when it comes to a conflict between history and sound government the former must take second place. Sound government must prevail.
I was interested to hear my noble friend Lord Elton discussing what would happen if there were to be a dispute about whether or not a book should be authorised or a disclosure made. He suggested—and I believe this argument was made several times in the course of this afternoon's proceedings—that the arguments on whether or not a disclosure should be made would have to take place in the open. I believe those were his words. With respect to my noble friend, that is not what happens in countries like the United States, Australia or Sweden where different rules prevail.
I can speak with some experience. On one occasion I tried to extract some information from the CIA through the American courts. The matter was decided against me by an American judge, who saw the papers I was seeking to obtain. There was no question of my seeing them, the press or anyone else seeing them, or of the matter being discussed in the open. The decision was reached entirely behind closed doors.
I suppose that if there is to be any advance on the present situation we shall have to wait not for an official secrets Bill but for a freedom of information Bill; but that is not what is before us today. I am in favour of such a Bill and always have been but in the context of this Official Secrets Bill I accept that it is difficult to lay down a statutory provision under which the Secretary of State must make his decisions.
I was particularly interested in what the noble Lord, Lord Mishcon, said about the possibility of judicial review being demanded in the case of a Secretary of State whose decision was not to the liking of a writer, historian or former member of the services. Therefore, in thanking my noble friend for 756 his somewhat reassuring remarks and in thanking others who have taken part in the debate, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 25 and 26 not moved.]
§ Schedule 1 [Consequential Amendments]:
§ Earl Ferrers moved Amendment No. 27:
§ The noble Earl said: My Lords, I am grateful to my noble friend Lord Balfour for being, if I may say so, a remarkable ferret. He spotted the need for this amendment. Schedule 1 already makes a conseqential amendment to a provision of the Local Government Act 1974 which refers to the existing Official Secrets Acts and which the amendment in Schedule 1 would keep up to date by a reference to the present Bill. The amendment before your Lordships ensures that Schedule I makes a similar amendment to the equivalent Scottish provision in the Local Government (Scotland) Act 1975. I beg to move.
§ On Question, amendment agreed to.