§ 3.14 p.m.
§ Read a third time.
§ Clause 1 [Security and intelligence]:
§ Lord Elwyn-Jones moved Amendment No. 1:
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 is a last attempt—this time, I hope, successful—to provide in the Bill a limited form of defence of prior publication for the offences in Clause 1 of the Bill. In our submission, on this side of the House, information which has already been made available or has become available to the public—that is to say, the public of this country or any section of it—even if, before that publication, it was an official secret, cannot continue to be an official secret. It cannot continue to be an official secret after relevant information with regard to it has been made available to the public.
§ Previous amendments to achieve that result have ranged rather wider than the present amendment. The amendment moved by the noble Lord, Lord Bonham-Carter, 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. That is far wider than the amendment I now move, which is limited to the public of this country.
§ The amendment which I moved on Report provided a defence that the information had become widely disseminated to the public, whether in the United Kingdom or elsewhere. That came to he known in Committee as the "Patagonia point"; someone mentioned the possibility that even publication in Patagonia would do. However, we lost the point when I mentioned that there is a powerful Welsh settlement in Patagonia which would undoubtedly have made any interesting information available to their counterparts in this country or elsewhere.
§ We do not depend on that limited comfort in this amendment. It provides that if the information in question has been made available or has become available to the public, or a section thereof, that prior publication, subject to the condition which follows, should dispose of the security aspect of the matter.
The language used in the amendment I cannot claim to be original. It is to be found in the Protection of Official Information Bill, a House of Lords measure published in 1979 which did not, I think, proceed very far. However, Clause 7 of the Bill contained a precise provision for prior publication without the qualification that my amendment makes. Clause 7(1) of the Bill reads:
It shall be a defence for a person charged with an offence under sections 2, 3, 4 or 5 above in relation to information specified in sections 1(1)(c), (e) or (f) above 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".
I have taken those words, published, presumably with the authority of the Government, in 1979 and introduced them into my amendment. They have, if not the odour of sanctity, at least the benefit of prior user by Her Majesty's Government.
§ The House may well think that those concerned would already have learnt a lesson from the Spycatcher case about the grotesque folly of trying to prevent repetition of what had already been 1067 published and made known world-wide and make that an offence under the Official Secrets Act of this country. I regret to have to say that that made rather a laughing stock of us in several courts in different parts of the world, and among our own public.
Noble Lords will bear in mind the quotation from the noble and learned Lord, Lord Brightman, in the Spycatcher case that I ventured to mention at an earlier stage of the discussion of this matter, I stated:
In the Spycatcher case the noble and learned Lord, Lord Brightman, 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 by an ass' ".
§ The language used in this amendment contains the important additional proviso that there was no reasonable likelihood that the futher disclosure of the relevant information would damage the work or any part of the security and intelligence services. It would be upon the defence to prove both aspects that are set out in the amendment; namely, prior publication, plus no reasonable likelihood that further disclosure would damage the work or any part of the security and intelligence services.
§ I greatly hope that the last stage of the consideration of this important Bill, which was expected to liberalise the position and certainly make sense of the notorious Section 2 of the Official Secrets Act, is at last an opportunity for the House to bring an element of sense, reality and liberality to what has been not much more than an authoritarian document; namely, the Bill as it now stands. I beg to move.
§ Lord Bonham-Carter
My Lords, I should like once more to support the noble and learned Lord, Lord Elwyn-Jones, in his attempt to help the Government avoid committing folly. When I moved in Committee the amendment to which the noble and learned Lord referred, I genuinely believed that I was being helpful. I genuinely believed that the Government would want to avoid a repetition of the Spycatcher saga, would want to avoid becoming the laughing-stock of the world and, still more, would want to avoid paying large sums of money to become the laughing-stock of the world.
That was to misunderstand the position. I very much regret that, owing to other commitments, I had to miss the Report stage of the Bill last week and was not therefore able to listen to the debate that took place. However, I have read it with care and 1068 I believe that I misunderstood why the Government resisted the amendment that I moved, why they resisted the amendment that the noble and learned Lord, Lord Elwyn-Jones, moved and why, I suspect, they will resist the amendment mark 2 of the noble and learned Lord which is before the House today.
I read in particular the eloquent speech of the noble Earl, Lord Ferrers, in which he expressed the reasons the Government could not meet the ingenious efforts of those of us on this side of the House to overcome their difficulties. He said that it was a matter of principle, and went on to say:The principle is that members of the security and intelligence services, and notified people, work, and can only work, on the basis of trust. Any unauthorised disclosure by a member of the security and intelligence service must be unacceptable… It is a matter which goes to the heart of the security of the nation as a whole".—[Official Report, 18/4/89; col. 732.]Others of the Minister's noble friends produced a whole series of extremely ingenious theories as to why an item of news could be planted in the Patagonian Times, if I may still refer to it as such. It could then be republished in the Sun newspaper, so that it could inform members of the IRA in Belfast of some secret that they found otherwise unobtainable. As the noble Lord, Lord Ardwick, pointed out in that debate, that seemed a rather far-fetched theory. Nonetheless, they hold to it.
However, I believe that, lying behind the eloquence of the noble Earl, Lord Ferrers, is the idea that it is reasonable, necessary and desirable to demand lifelong confidentiality of members of the security services and those notified persons. If one demands lifelong confidentiality, any breach of that confidentiality is a breach of trust. If one has committed oneself to that position, I suppose that it is reasonable to say that that is intolerable.
I believe that there are two consequences of that position that we should bear in mind. If we bear them in mind and regard them as reasonable, they will provide a powerful reason for supporting the amendment moved by the noble and learned Lord, Lord Elwyn-Jones. We on this side of the House believe that lifelong confidentiality in all respects is unreasonable and unnecessary. I believe that I am right in saying that that view is shared by the noble Lords, Lord Dacre and Lord Thomas, and by a number of supporters of the Government in another place. We believe that, partly for reasons eloquently expressed by the noble Lord, Lord Thomas about the historical value and importance to historians of being able to use some of the material that is made available by members of the security services, but also for another reason which seems to me to be cogent.
If one takes the view of the noble Earl, Lord Ferrers, one must conclude that any unauthorised disclosure by members of the security and intelligence services must be unacceptable. If that is so, it seems to me that one is saying that, if a member of the security or intelligence services announced that, in their headquarters, they used a particular type of coffee or smoked a particular type of cigarette, he would be guilty of a criminal offence. I had believed that the whole point of the Bill was that we would get rid of a blanket offence of that sort even for members of the security service.
1069 It seems to me rather ironical that at the end of five days of consideration in this House and at least Five days in another place we should come back to a restricted but nonetheless objectionable part of Section 2 of the 1911 Act. It will be rather sad if, after all this discussion and debate, we find that "in our end is our beginning".
§ 3.30 p.m.
§ Lord Boyd-Carpenter
My Lords, as the noble and learned Lord, Lord Elwyn-Jones, reminded us, this is the third round of the prior publication defence. I am bound to say I rather regret that on Third Reading we should once again have to discuss an issue that we have already discussed at very considerable length both in Committee and on Report. I am not at all clear why noble Lords opposite feel it necessary to bring this matter up again when your Lordships' House has given very full and detailed consideration to the issues and has reached decisions on them. Still, there it is and I suppose we must now deal with it.
It was interesting to hear the different approaches of the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Bonham-Carter. The noble and learned Lord confined himself to saying, "Well, if the secret is out you only make a fool of yourself if you pursue further exposure of it". It is a logical argument and not without force, but one which I think we must hesitate to accept. It means that if someone is guilty of a breach of security and gets away with it once on a small scale, then he is entitled to go the whole hog and go on publishing that secret again and again. In fact that is the approach of this amendment. It is not a question of the information becoming available to the public alone; it also is made available to "a section of the public". I do not know what "a section of the public" means. It might well mean some particular organisation—perhaps an organisation hostile to the interests of this country. I suppose that the IRA is "a section of the public", as is the Campaign for Nuclear Disarmament.
We are not legislating simply to try to prevent something that is widely known from being further discussed. If this amendment is adopted we shall be legislating to the effect that even when quite a small section of opinion, which may not wish to publicise the matter, has got hold of such information, it ceases to be an offence to publish it and the people concerned are free to do so.
The noble Lord, Lord Bonham-Carter, takes a totally different line. Quite consistently with what has been said on previous occasions, he opposes the doctrine, which on the contrary I hold, that if one goes into the security service one enters a service in which one has an honourable obligation to disclose nothing that is learnt there for the rest of one's life, unless permission is given to disclose it from the top. I believe that one should not go into this service, of which the essence is confidentiality, unless one is prepared to accept that honourable obligation.
It is no use talking about history. I appreciate the remark: history does not repeat itself; it is merely that historians repeat one another. But in this context it is not a question of history being significant; 1070 what is significant is the preservation of information which ex hypothesi is important for the security of the state. With all respect to the distinguished historians to whom reference has been made, that is a consideration which is a great deal more important than their convenience in subsequently writing the history of these times.
The amendment itself is very odd. First, it implies that disclosure to "a section of the public" is equivalent to disclosure to all. Therefore, as the noble and learned Lord said, one makes a fool of oneself if one tries to stop the matter going further. But in the case of only a small section knowing, there may be every reason and every argument for preventing further publication of important matters.
In the second part of the amendment contained in paragraph (b):there was no reasonable likelihood that its further disclosure would damage the work or any part of the security and intelligence services",there is nothing about whether disclosure might damage the national interest or the security of the realm; it is confined only to damage to the services. That again is a rather remarkable omission.
I must say I find it a little difficult to understand why throughout the discussion on this Bill noble Lords opposite have sought to weaken it. As the noble and learned Lord said, the Bill is a liberalising measure. The Government need not have brought it forward at all. They could have left in force Section 2 of the old Act and saved themselves a great deal of trouble. In deference to the views of those who thought that a more liberal approach was right, they have brought forward this Bill; yet noble Lords opposite seem the whole time to be trying to weaken it. This amendment would weaken it seriously.
§ Lord Monson
My Lords, unlike the noble Lord, Lord Boyd-Carpenter, I support this amendment, even though I fully agree with him that the words "a section of the public" are extremely imprecise. "A section of the public" could mean 20 per cent. or even 40 per cent. of the public. That is fine, but it could equally well mean one-tenth of 1 per cent. of the public, which is a different matter altogether.
Having said that, the important and significant words surely are not in paragraph (a) but in paragraph (b). All that matters in the end is that no damage shall be done to the security services. Provided that that condition is fulfilled, the precise proportion of the public which is already aware of the information in question is surely of no consequence.
§ Lord Renton
My Lords, perhaps I may take up that point raised by the noble Lord, Lord Monson. I suggest that paragraph (b) adds nothing at all to the content of paragraph (a). Once information has been made available to the public or a section of the public, the harm has been done. It adds nothing to go on to say:there was no reasonable likelihood that its further disclosure would damage the work or any part of the security and intelligence services".The harm has already been done; the horse has already bolted. I ask your Lordships to bear in 1071 mind that the addition of that apparently innocuous phrase in paragraph (b) helps not at all.
I agree entirely with the remarks of my noble friend Lord Boyd-Carpenter, but I should like to make one or two further points. First, it is very easy to prove what is "a section of the public". I should have thought that in our democratic society the Front Bench opposite would claim to be a section of the public. Not one individual perhaps, but any group of people could well be a section of the public. We must bear that in mind.
But supposing the information was first published abroad, as in the Wright case, and then became available to a section of the public in this country. I should have thought that that was just as damaging as publication in this country. That is also a factor that we should bear in mind.
I turn to the noble and learned Lord, Lord Elwyn-Jones, who seems to me to rest his case upon the prima facie reasonable premise that the phrase in his amendment was borrowed from a government Bill of nearly 10 years ago. Surely it is a fallacy to assume that a government Bill necessarily represents the will of Parliament. Ten years ago Parliament might not have agreed to let the measure stand, or to have such provision in the Bill. There might have been many Members of your Lordships' House or another place with the wisdom of my noble friend Lord Boyd-Carpenter who would argue strongly, "No, this is not right?" We have to trust the security services not to let such a thing happen.
The Government 10 years ago had no foreknowledge presumably of the Spycatcher case. Now that we have had the Spycatcher case we ought to be learning by the experience gained—and it has been a very harmful experience indeed.
§ Lord Renton
My Lords, yes, it was prior publication. I do not suppose that Mr. Wright will ever have the temerity to return to this country. He will live on his ill-gotten gains elsewhere. But he did immense damage, as would any member of the security or intelligence services if he broke his solemn undertaking not to disclose matters which had come to him in the course of his duty.
I do not understand the attitude of noble Lords opposite when they say, "Let the solemn undertaking by members of the security service be broken, and once the damage is done we shall close our eyes to it. The man shall not be punished in spite of the fact that he has broken his solemn undertaking." One wonders what we are legislating about if that assumption is to be made. For these reasons I say that this is a special defence—introduced at this late stage, not for the first time—that we should resist. Perhaps I may add one further point. At the Report stage my noble friends on the Front Bench gave no undertaking whatever to consider this matter further. They were not obliged to do so and they did not. I have to point out the contrast between Amendment No. 1 and Amendments Nos. 2 and 3 in my name that 1072 I have tabled simply because a very firm undertaking was given at Report stage.
§ 3.45 p.m.
§ Lord Mishcon
My Lords, the noble Lord, Lord Boyd-Carpenter, threw a remark at the Opposition Benches, with his usual courtesy and clarity, that the Opposition seemed to wish to weaken this Bill. We made it very clear at the outset, at Second Reading, that we supported the Bill in some of its sections, and that we admired the Government for bringing forward a measure to deal with the abolition of the all-pervading and not very wise Section 2 that had befuddled previous Parliaments. They at least have had the courage to grapple with it. We were perfectly frank.
Our desire is not to weaken the Bill, nor to weaken the security services. We on this side of the House are just as keen on national security and the preservation of it as any Member on the Govenment Benches. What we desire to do—and the Government are not doing it and have not done it so far—is to strengthen and safeguard the rights of the subject. It is the Government who appear to have lost that safeguard in their attempts to protect by all manner of means the intelligence service. We pay our tribute to that service. But we happen to have a little knowledge of history, and of the numbers of occasions that have embarrassed every British citizen, let alone British Governments, when at times that service has had people in it who have done this country and the good name of the intelligence service grave disservice. Some of them managed to get to the Soviet Union; some of them continued their treason until they died in this country. However, they are known and they are part of history.
Yet the Government will not listen. I agree that it is the Third Reading stage; I shall justify taking this amendment at Third Reading in a moment. What have we tried to do from these Benches? What if a crime has been committed, and all the machinery laid down has been followed, and, furthermore, there has been a disclosure after it has been proved that a crime has been committed? We are told that we cannot have such provision in this Bill. There is no question of public interest, whichever way one wishes to define it. It is said: there will be no disclosure; the oath of loyalty, the oath of allegiance, cover matters of crime and fraud.
On prior publication, we are trying to make provision for freedom of information to be in some way protected. Reference has been made of publication to the public, or a section of the public. The noble Lord, Lord Renton, amusingly asked whether we on the Front Bench did not regard ourselves as a section of the public. I hope that we are a very worthy, learned and noble section of your Lordships' House. Nevertheless, we would not describe ourselves as a section of the public; nor would any judge directing a jury. We are saying that we are members of the public. We are not a section of the public.
What is the position here? We are saying, first, that there has to be a prior publication to our public—not that of Patagonia or any other state in 1073 the universe. In case someone were to argue—and I thought that this point would have occurred to Members opposite—that one has to prove, even though it be in the defence, on the balance of probabilities as against beyond all reasonable doubt, that it has become known to the public, the immediate question arises: does one have to show that it has become known to every member of the public, or to 90 per cent. of the public? Obviously unless one wished to reduce the defence to an absurdity, one has come to the conclusion of a wise Government 10 years ago, in 1979. I regret that possibly some of the wisdom has been lost over the 10 years. In all its legislative pristine freshness the Government prepared a Bill and were quite content to use the words "section of the public" for the very reason that I have given. Obviously it would have to be a substantial section of the public.
In addition to the safeguard of prior publication the onus on the defence is to prove that there is no reasonable likelihood that its further disclosure would damage the work or any part of the security and intelligence services. I do not say this in any way offensively. The House deserves a rather more intelligent argument than asking, "Are not the words 'security of the country' the proper words here, and not the question of the safety or security of the intelligence services?" Surely the security of this country is the work of the security services. If the security of the country is damaged, that would obviously damage what the security services are supposed to do.
I deal lastly with the argument that it might have been slightly indelicate—I do not believe it was suggested that it was in any way improper—to bring this matter up at Third Reading. Once we reach Report stage in relation to a major amendment, I do not believe that we could consider the arguments advanced by the Government against that amendment and then try to deal with those arguments at the last stage of the Bill which is Third Reading. One asks: what are the risks if matters are left at Report stage? It would mean that on no amendment, even if dealing with the Government's answer at Report stage, could one deal with a matter at Third Reading. A different principle is involved in the amendment.
The amendment may be defeated. The Government may resist it. I do not believe that anyone on any Opposition Benches need feel any shame in fighting the last battle in the protection of freedom of information and of the subject, even against the security services for whom we have as much respect as any Member on the Benches opposite.
My Lords, the noble Lord, Lord Mishcon, says, as he has said before, that what he wants is freedom of information. As he knows full well, whenever we have discussed this we have always considered that freedom of information is different from official secrets. It is true that a similar amendment was discussed on Report. A kind of record was achieved then. Having not much to do, I instigated a little research. As far as I know it is the first time, at least in the last seven years, that your Lordships have specifically discussed the situation 1074 in Patagonia. That was one of the less expected consequences of our debates on the Official Secrets Bill.
I am sorry that I can say little more in favour of the amendment. I congratulate the noble and learned Lord, Lord Elwyn-Jones, on his persistence in bringing the matter forward again, albeit in a slightly different form. The noble Lord, Lord Bonham-Carter, did me the courtesy of quoting what I had said. It is always a moment of trepidation when a noble Lord says that he is quoting something one has said. As the words poured out of the noble Lord's mouth, quoting as he was from Hansard, I was glad that I could agree with every word he said. The noble Lord, Lord Bonham-Carter, quoted me as saying that there was a life-long duty of confidentiality. He then said that in his view that was unnecessary. That is the precise point. There is a difference of principle.
The noble Lord, Lord Mishcon, says that the trouble is that the Government do not listen. The Government have listened. The only difference is that having listened we do not actually agree. That is not the same thing. My noble friend the Lord Privy Seal explained fully the Government's opposition to this amendment at Committee stage. Our opposition then was addressed to the principle. Noble Lords opposite went away to look at the drafting. They came back at Report stage with another amendment. I made it clear that the Government's objections were to the principle and not to the drafting. But that did not deter the noble and learned Lord, Lord Elwyn-Jones, because he went away again to look at the drafting. Now the noble and learned Lord has come back with another amendment. However, we are still against the principle. As a matter of drafting we are now almost back to where we started. The amendment allows a defence for the disclosure of security information if it had previously been made available to the public or to a section of the public.
As a matter of drafting it matters not whether that public, or that section of the public, is in this country or abroad. My noble friend Lord Boyd-Carpenter found a certain difficulty in understanding what was meant by "a section of the public". I did too. It is possible that the Welsh community in Patagonia would still be an issue; so, it seems, would a group of people standing at a bus stop. That is the real breadth and the real difficulty of the amendment.
The noble and learned Lord, Lord Elwyn-Jones, said that a prior publication defence appeared in the Government's 1979 Bill. He said very ingeniously that he had lifted the words from the Government's own Bill; he thought that that would ingratiate the words to the Government. To start with, there was no prior publication defence in the 1979 Bill for the disclosure of information relating to security and intelligence. In any event we made it clear in our White Paper, issued before publication of the present Bill, that we had considered the case for a prior publication defence and found the arguments to be flawed. We believe that there is no place or necessity for such a defence in the Bill.
The noble and learned Lord, Lord Elwyn-Jones, went on to say that his amendment was limited only to the public in the United Kingdom. l am advised 1075 that the reference in the amendment to the public or a section of the public is equally capable of referring to the public outside the United Kingdom. Perhaps I can reiterate the principle which we feel quite strongly about.
The defence proposed in the amendment would apply, among others, to members and former members of the security and intelligence services and to notified people. Your Lordships have already agreed, following a Division, that unauthorised disclosures by such people should not be a subject suitable for a test of harm, since all disclosures of this nature can be harmful. This is because they breach the trust on which the work of those services must depend. The integrity of that trust is essential for the security of this country and for the lives and safety of us all. The fact that some bit of information about the work of the security and intelligence services has been previously disclosed somewhere in some way cannot and, I would suggest, must not allow that trust to be set aside. The principle is not altered by the fact that some story is doing the rounds. Indeed, it may well be reinforced. My noble friend the Lord Privy Seal and I have on two separate occasions already told your Lordships that this defence would apply not only to the security and intelligence services and notified people under Clause 1(1) but also to the ordinary Crown servant or government contractor under subsection (3)—the official who was not a member of the services or a notified person. The harm test in Clause 1(4) would already allow them to argue that their disclosure was of information which was already common knowledge and so could not damage the work of the services. There is no need to provide a separate defence for that. Indeed to put this onus on the defence would make the position for the defence worse.
I point out to your Lordships that the defence proposed in the amendment would not apply to anyone who was not a Crown servant or government contractor, for example, the newspaper publisher. Offences applying to those kinds of people come under Clause 5 of the Bill. The amendment and this defence would not and could not apply to them.
So, from the point of view of members of the security and intelligence services and notified people, this defence is wrong in principle. From the point of view of Crown servants and government contractors, the defence is not necessary as the prosecution has to prove that their disclosure has been damaging. From the point of view of a newspaper publisher, under the Bill as it stands the prosecution must prove also that his disclosure has been damaging; yet the amendment would not apply to him.
I suggest that even on the noble and learned Lord's own terms the logic of the amendment is flawed. The harm tests in the Bill already allow the case for previous publication to be argued. Most important is the fact that in relation to the intelligence and security services, and to notified people, the amendment would be against the interests of the security of the nation.
1076 We have had three goes at this subject and I hope that the noble and learned Lord, Lord Elwyn-Jones, will understand my reason and agree with it. I have no doubt that he understands it, but I have doubt as to whether he will agree with it. However, it is always good to have hope, and I hope that the noble and learned Lord will agree and feel inclined to withdraw the amendment.
§ Lord Elwyn-Jones
My Lords, there is still no prior publication defence in the Bill in regard to the most important and serious matters covered by it. It was not I who introduced Patagonia but a noble Lord from the other side of the House. I felt it to be my patriotic duty to come to the aid of the Patagonians. Temporarily they were put under potential suspicion or ignorange—I know not which.
In respect of this serious matter, outside comment in the press and elsewhere has strongly supported the point of view which we put forward in the amendment. I regret that at this last hour a touch of liberality has not been added to the Bill. It does not exist in the Bill and has never done so. Our attempts to introduce it have been resisted. I believe that at this last stage it is proper to test the opinion of the House. I beg to move.
§ 4.2 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 73; Not-Contents, 121.1077
|DIVISION NO. 1|
|Addington, L.||Jeger, B.|
|Airedale, L.||Kennet, L.|
|Amherst, E.||Kilbracken, L.|
|Annan, L.||Kilmarnock, L.|
|Aylestone, L.||Leatherland, L.|
|Birk, B.||Llewelyn-Davies of Hastoe, B.|
|Bonham-Carter, L.||Macaulay of Bragar, L.|
|Briginshaw, L.||McCarthy, L.|
|Broadbridge, L.||McNair, L.|
|Bruce of Donington, L.||Mishcon, L.|
|Carmichael of Kelvingrove, L||Monson, L.|
|Cledwyn of Penrhos, L.||Northfield, L.|
|Cocks of Hartcliffe, L.||Peston, L.|
|David, B.||Phillips, B.|
|Davies of Penrhys, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Dean of Beswick, L.|
|Dormand of Easington, L.||Prys-Davies, L.|
|Elwyn-Jones, L.||Rathcreedan, L.|
|Ennals, L.||Rochester, L.|
|Ewart-Biggs, B.||Sainsbury, L.|
|Ezra, L.||Saint Brides, L.|
|Falkland, V.||Seear, B.|
|Fitt, L.||Sefton of Garston, L.|
|Foot, L.||Serota, B.|
|Galpern, L.||Soper, L.|
|Graham of Edmonton, L.||Stallard, L.|
|Gregson, L.||Stedman, B.|
|Grey, E.||Stoddart of Swindon, L.|
|Grimond, L.||Strabolgi, L.|
|Hampton, L.||Taylor of Blackburn, L.|
|Harris of Greenwich, L.||Taylor of Mansfield, L.|
|Hatch of Lusby, L.||Tordoff, L. [Teller.]|
|Hughes, L.||Turner of Camden, B.|
|Jay, L.||Underhill, L.|
|Wallace of Coslany, L.||Williams of Elvel, L.|
|Walston, L.||Wilson of Langside, L.|
|Ailesbury, M.||Lyell, L.|
|Alexander of Tunis, E.||Mackay of Clashfern, L.|
|Allenby of Megiddo, V.||Macleod of Borve, B.|
|Allerton, L.||Mancroft, L.|
|Ampthill, L.||Margadale, L.|
|Annaly, L.||Marley, L.|
|Arran, E.||Masham of Ilton, B.|
|Auckland, L.||Merrivale, L.|
|Beaverbrook, L.||Mersey, V.|
|Belhaven and Stenton, L.||Montgomery of Alamein, V.|
|Bellwin, L.||Morris, L.|
|Beloff, L.||Mottistone, L.|
|Belstead, L.||Mowbray and Stourton, L.|
|Bessborough, E.||Newall, L.|
|Blatch, B.||Nugent of Guildford, L.|
|Blyth, L.||O'Brien of Lothbury, L.|
|Borthwick, L.||Onslow, E.|
|Boyd-Carpenter, L.||Orkney, E.|
|Brabazon of Tara, L.||Oxfuird, V.|
|Bramall, L.||Pender, L.|
|Brougham and Vaux, L.||Piatt of Writtle, B.|
|Caithness, E.||Plummer of St. Marylebone, L.|
|Constantine of Stanmore, L.||Porritt, L.|
|Cottesloe, L.||Pym, L.|
|Cullen of Ashbourne, L.||Rankeillour, L.|
|Davidson, V. [Teller.]||Reay, L.|
|De Freyne, L.||Renton, L.|
|Denham, L. [Teller.]||Renwick, L.|
|Derwent, L.||Rippon of Hexham, L.|
|Dundee, E.||Rodney, L.|
|Eden of Winton, L.||Romney, E.|
|Effingham, E.||St. Davids, V.|
|Elibank, L.||St. John of Fawsley, L.|
|Ellenborough, L.||Seebohm, L.|
|Elliott of Morpeth, L.||Selkirk, E.|
|Erne, E.||Sempill, Ly.|
|Erroll of Hale, L.||Shannon, E.|
|Faithfull, B.||Shaughnessy, L.|
|Ferrers, E.||Shrewsbury, E.|
|Ferrier, L.||Skelmersdale, L.|
|Fraser of Carmyllie, L.||Slim, V.|
|Fraser of Kilmorack, L.||Somers, L.|
|Gibson-Watt, L.||Strange, B.|
|Glenarthur, L.||Strathclyde, L.|
|Greenhill of Harrow, L.||Strathspey, L.|
|Haddington, E.||Sudeley, L.|
|Harmar-Nicholls, L.||Swansea, L.|
|Havers, L.||Terrington, L.|
|Hayter, L.||Thomas of Swynnerton, L.|
|Henley, L.||Thorneycroft, L.|
|Hesketh, L.||Trafford, L.|
|Holderness, L.||Trefgarne, L.|
|Hooper, B.||Trumpington, B.|
|Hylton-Foster, B.||Vaux of Harrowden, L.|
|Johnston of Rockport, L.||Waldegrave, E.|
|Joseph, L.||Wilberforce, L.|
|Kaberry of Adel, L.||Wise, L.|
|Lauderdale, E.||Wolfson, L.|
|Long, V.||Wynford, L.|
|Lurgan, L.||Young of Graffham, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.10 p.m.
§ Clause 2 [Defence]:
§ Lord Renton moved Amendment No. 2:
§ Page 2, line 45, leave out ("abroad").
§ The noble Lord said: My Lords, in moving Amendment No. 2, I should mention that Amendment No. 3, which is to the same effect, goes with it.1078
§ On Report, I moved two amendments which had the same effect as these but my noble friend Lord Boyd-Carpenter wisely pointed out that our common purpose could best be achieved by simply leaving out the word "abroad", and that is what my amendments do on this occasion.
§ On Report my noble friend Lord Ferrers undertook to consider the matter before Third Reading and kindly said that he would write to me about it, which he has now done but, I am sorry to say, without convincing me.
This is really a matter of how we present the situation to which Clause 2 gives rise. It creates a defence when defence secrets are revealed. Clause 2(1) states:
a Crown servant or government contractor is guilty of an offence if without lawful authority he makes a damaging disclosure",
of something related to defence. It is important to note the definition of defence given in Clause 2(4). I shall not read that out but it extends to four paragraphs and is as wide as could be. Subsection (2) states that:
a disclosure is damaging if … it damages the capability of … the armed forces … to carry out their tasks or leads" —
it does not say "might lead"—
to loss of life".
It is important to note that that paragraph on which my noble friend relied on Report and relies on in his letter to me is much narrower in its terms and effect than the definition of defence in subsection (4).
One then comes to subsection (2)(b), to which my amendments relate. That is rather strangely worded and states:
otherwise than as mentioned in paragraph (a) above, it endangers the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests or endangers the safety of British citizens abroad".
I particularly refer to the last words. Here, the safety of British citizens abroad is specifically covered. However, the safety of British citizens at home in this country is not covered by Clause 2(2)(a), upon which my noble friend Lord Ferrers relies.
§ Therefore, I say that it is unfortunate that we have this limitation "abroad" used twice in paragraph (b). I say that we would do better without that and that it is misleading in the light of what my noble friend said about paragraph (a). It also seems to deny that the first duty of the government of this country is to defend this country and its citizens here. I have made this case before and I do not wish to labour it now.
Perhaps I may refer to my noble friend's letter, because I believe that it is only right that I should do so as he had the courtesy to write to me. I must confess that his letter convinced me that my two amendments would be better made than not made; in other words the letter has had the opposite effect upon my mind to that which he intended and the opposite effect to that which it has made on his own mind. He says:
The harm test in Clause 2(2) is in three separate parts. The test is that the disclosure damages the capability of our armed forces, or any of the other matters set out in Clause 2(2)(a); or that it endangers our interests abroad as set out in Clause 2(2)(b); or that it would be likely to have any of those effects—this is in Clause 2(2)(c)".
He then goes on to say:
I can assure you that the terms of the drafting do prohibit defence disclosures which would damage the capability of our armed forces in this country".
That is true enough, and it continues:
and their equipment and installations in this country".
However, there is nothing which says that a disclosure which would endanger lives of citizens of this country is covered. That is the problem. He then goes on to say:
This is because the test in Clause 2(2)(a) is not limited geographically".
That is true enough but it is limited in words—
and is completely separate from the international relations harm test in Clause 2(2)(b)".
§ I cannot help saying that the problem which we have here and to which I invite your Lordships' attention is one which arises because of the desire to be over-refined in the drafting of our Bills, even Bills creating offences like this. This clause could have been drafted in more general and simpler terms which comprehensively protected defence secrets. I believe that that could have been done in a few sentences.
§ That has not been done and at this late stage I am not suggesting that we should now set about doing it. However, at this last opportunity it would be better to leave out the word "abroad" where it occurs. I beg to move.
§ Lord Mishcon
My Lords, I should like to say that at first instance it would appear that the noble Lord, Lord Renton, has a very real point here, if only from the point of view of clarity. I must admit that I followed him very closely and it seemed to me that, with his usual skill, it was a well-lit argument with a proper conclusion.
§ Lord Boyd-Carpenter
My Lords, when my noble friend on the Front Bench replies, I should be very grateful if, having followed his argument, he can explain to me what harm would be done by omitting the word "abroad" in lines 45 and 48.
Secondly, I should be grateful if he could explain whether in any other part of the Bill protection is given to British civilians or British interests at home. I quite see that the armed forces are covered under paragraph (a) but on a careful reading of this, there does not appear to be any protection either for British citizens or British interests in this country. Surely it is the wish of the Government that these should be covered and protected. Therefore, perhaps my noble friend can explain how, with the Bill as it stands, this is done.
My Lords, I am sorry that I did not manage to persuade my noble friend Lord Renton by the letter which I wrote to him, which I thought was enormously persuasive. I do not blame my noble friend for pursuing the matter, but when the noble Lord, Lord Mishcon, in a brief intervention, says that he wholeheartedly agrees with my noble friend Lord Renton, it makes life even more difficult.
1080 I was disconcerted when my noble friend Lord Renton said that the effect of my letter was the opposite to that which I had intended. When I was at school I tried to learn all about Boyle's Law, Ohm's Law and Faraday's Law. Therefore, I decided to coin a law which I modestly called Ferrers' Law. It says quite simply that everything has the reverse effect of that intended. I had not intended to become a victim of my own law, nor have pointed out to me by my noble friend that I was such a victim. However, despite my noble friend's persuasiveness and comprehensive understanding of drafting I will seek to explain why his amendment is unnecessary and is best left out of the Bill.
In particular, I can assure your Lordships that the test of harm in relation to the capability of our armed forces applies at home as well as abroad. It applies to their capacity to defend us at home as well as abroad. The test applies to their equipment and to their lives at home as well as abroad. My noble friend asked me at Report stage to look at the drafting on these very points. I have done so. I can assure him and other noble Lords that the Bill as drafted has the effect I have described. My noble friend says that Clause 2(2)(a) is much wider drafted than subsection (2)(b). He is correct. Subsection (2)(a) refers, among other things to:damages the capability of the armed forces".The word "abroad" is not included. Any damage done to the armed forces therefore refers to damage done either abroad or at home. There is no geographical limitation on that test.
Subsection 2(b), though, relates only to our interests abroad. It is a quite separate, and alternative, test. It is intended to deal with the separate consequences which an unauthorised disclosure of defence information may have in the field of international relations. Those consequences are indeed to our interests abroad and not to our interests in this country. I sought to explain in our previous debate that the effect of my noble friend's amendments would be to provide an extremely wide test. It would be sufficient to show danger to any interest of this country. That would be to provide an unnecessarily broad basis for a prosecution. That test would not, of course, be of specific relevance only to defence. It should in principle apply to any information the disclosure of which had that result. The effect would be to take the Bill a step back in the direction of the dreaded Section 2. That is not the Government's intention. I suspect that there would be widespread concern if the Government were suddenly to change tack at this late stage and accept an amendment with such far-reaching consequences.
My noble friends Lord Renton and Lord Boyd-Carpenter asked a specific question. The Bill is deliberately limited to the harm which is likely to arise in the area of defence. That is covered in Clause 2(2). It is not our intention to apply such a broad harm test as my noble friends propose. That would create a great deal of unpredictability and uncertainty in the law. We should also be criticised for putting into effect a blanket provision such as exists under Section 2.
1081 I can assure my noble friend that an amendment on the lines proposed, with these undesirable consequences, is not necessary to provide fully sufficient protection to the defence interests of the nation, whether at home or abroad. I hope that my noble friend will feel persuaded by that and will not seek to press his amendment.
§ Lord Mishcon
My Lords, before the noble Earl sits down—and here I am borrowing partly the question asked by the noble Lord, Lord Boyd-Carpenter—will he take it for granted for one moment that the information which it is sought to protect relates to a future incident where no member of the armed forces is going to be blown up, none of their equipment is going to be blown up, but a section of the public (if I may use that phrase) is going to be blown up? All I ask for—and I want to make it absolutely clear that it is all that the noble Lords, Lord Boyd-Carpenter and Lord Renton, are asking for—is this. Where in this Bill is that secret covered? Where in this Bill is that information covered? If it were a fact that a civil servant reveals such information when the police are about to close in or the armed forces are about to take an initiative, where is that covered? One appreciates that the armed forces and their equipment are covered, and one appreciates the interests abroad are covered, but what about our citizens in this land in regard to such an incident?
I can see the problem put forward by the noble Lord, Lord Mishcon. However, he will find that it is covered by Clause 4(2) which states:This section applies to any information, document or other article …the disclosure of which … results in the commission of an offence",and so on. The problem put by the noble Lord is answered in that clause.
§ Lord Mishcon
My Lords, we do not wish to rush the Minister but we must get this matter clear. The Minister will find that Clause 4 is headed,Crime and special investigation powers".That is a proper definition of what is covered. If the Minister refers only to subsection (2), all that that information refers to is,the disclosure of which … results in the commission of an offence" —the example I ventured to give is not covered—or … facilitates an escape from legal custody"—that is not coveredor … impedes the prevention or detection of offences or the apprehension or prosecution of suspected offenders" —that may not be covered by the example I gave—or … which is such that its unauthorised disclosure would be likely to have any of those effects".If the effects are not covered then subsection (2)(b) is inoperative. It therefore seems to me that there are two points to make. First, my example does not appear to be covered and, secondly, if it is covered what harm is there in having it covered twice?
My Lords, the noble Lord puts forward an example relating to blowing up the public. My understanding is that that is covered by Clause 4(2). However, while I know it may not be to the convenience of your Lordships, this is a specific point and I should like to write to the noble Lord and confirm the exact position in that respect.
§ Lord Boyd-Carpenter
My Lords, before my noble friend finally sits down, will he also undertake to write to me and state specifically where in the Bill there is protection for the lives of British citizens in this country?
§ 4.30 p.m.
§ Lord Renton
My Lords, I am grateful to the noble Lord, Lord Mishcon, and to my noble friend Lord Boyd-Carpenter for their support on this matter. There is a real difficulty about which. I could not expect my noble friend Lord Ferrers to know. He will not mind my saying that and I make full allowance. Under the rules of interpretation of statutes, the courts, if they have to try under this clause an offence relating to defence secrets, will be in a difficulty if it is alleged that a defence secret has endangered the safety of a British citizen in this country. In Clause 2(1)(a) there is no reference to endangering the safety of British citizens in this country. There is no such reference in any other part of Clause 2. Neither is there in Clause 4(2), nor anywhere else in the Bill.
Under the rules of interpretation—and I hope the House will forgive me if I use the Latin term—expressio unius est exclusio alterius. Subparagraph (b) refers to secrets which endanger the safety of British citizens abroad. Therefore the courts will not be able to deal with the breach of a secret involving endangering the safety of British citizens at home. If my noble friend does not here and now agree to the omission of the word "abroad" in the two places where it occurs, the Bill will go on to the Statute Book with a most unfortunate defect. Mainly because too few noble Lords have heard the discussion, I should not dream of dividing the House: one knows what the result of a Division would therefore be. However, in the public interest, in my noble friend's own interest and in the interest of the country, I make a last plea to him to leave out the word "abroad" in view of the arguments which he has heard.
My Lords, with the leave of the House, I understand my noble friend's concern. I explained that if we were to accept the amendments there would be a much wider application than the specific application to which he refers. Its wider application would be detrimental. We do not have a test of endangering the safety of British citizens in this country, as to do so is itself likely to be a criminal offence. That seems reasonable and that is why I referred the House to Clause 4.
Safety abroad is another matter. That would be greatly outside the jurisdiction of our courts and that position needs protection. That is why I gave the House the reply that I did. I think that it is correct. I shall look further into the matter, although I know that that will not help my noble friend's specific 1083 difficulty at the moment. However, I can still look into the matter. It would have been a discourtesy if I had said that I would not consider my noble friend's point.
This is a technical and specific matter. I am advised that the position is correct, and it is correct for the reasons I have given. If anyone were to do that to a civilian it would be a criminal offence and the criminal offence is covered. I shall look further into the point and I shall write to my noble friends Lord Renton and Lord Boyd-Carpenter as well as to the noble Lord, Lord Mishcon.
§ Lord Mishcon
My Lords, the noble Earl is being completely courteous and reasonable until he reaches the stage when he refers to looking into the matter. I anticipate that immediately following Third Reading someone—I imagine that it will be the noble Earl—will propose the Motion, That the Bill do now pass. I have a suggestion. I hope that the noble Lord, Lord Renton, will not think me discourteous. This is his amendment; it is not mine. I am merely supporting it. As the Motion, That the Bill do now pass, will not take very long to discuss, would not the proper procedure be not to take the Motion today but to take it on a date fairly soon so that the legislative programme is not interfered with. The Motion could be slotted in very easily as it will not take very long to debate. There is no point in the noble Earl saying that he will look into the matter after the Bill has already been passed. I therefore make that respectful suggestion to him in an endeavour to help.
My Lords, perhaps I may respond to that point. I said that this is a matter of reasonable technicality. I have explained why I believe I am right and why the advice I have given indicates that the point is covered without my noble friend's amendment. I have also indicated why, if my noble friend's amendment were to be accepted, it would have a wider implication than my noble friend and the noble Lord, Lord Mishcon, have in mind. I feel satisfied that this is correct. I will go into the detail of the matter and give my noble friend a more complete reply. However, it would be a great mistake not to debate the Motion, That the Bill do now pass, because of a matter which, as I have explained to the House, is already covered.
§ Lord Renton
My Lords, we cannot go on with this indefinitely. I am grateful to my noble friend for the trouble he has taken. It is with deep regret that I have to say, before asking leave to withdraw my amendment, that I consider that he has been wrongly advised, that I do not accept his interpretation of the position and that the acceptance of these two simple amendments would not have the effect which he seems to think such acceptance would have. It looks as though the Bill will go on to the Statute Book with an inherent defect. That is very unfortunate. However, I have done my best. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 3 not moved.]1084
§ Clause 13 [Other interpretation provisions]:
§ Lord Monson moved Amendment No. 4:
§ Page 10, line 43, at end insert ("but does not include the European Community or any organ of it,".
§ The noble Lord said: My Lords, this amendment is identical to an amendment tabled at Report stage in the name of the noble Lord, Lord Hutchinson of Lullington, which was not in the event moved, doubtless because of the imminence of the dinner hour and the evident and understandable desire of the House for an early night for once. Whether or not for precisely the same reasons as the noble Lord, Lord Hutchinson, I consider it a most important amendment, which is why I move it this afternoon.
§ Few people find much difficulty in understanding why secrets have to be kept when one is dealing with foreign powers which are truly foreign. In a dangerous world—and danger abounds in almost every era one can think of—the object of any country's foreign policy is to secure the friendship, or at the very least the absence of hostility, of the maximum number of foreign countries of any significance. Even when this has been achieved, the continuing friendship, or at the very least the neutrality of other countries, can never be taken permanently for granted by virtue of the fact that they are by definition free agents whose first duty when it comes to the crunch is to their own peoples. That is why tact, discretion, subtlety and even a certain degree of polite hypocrisy are normally necessary when dealing with them. All this requires secrecy.
§ The European Economic Community is quite a different matter. For better or for worse, we are actually part of the Community. We see this every time we go through immigration control in an EC country. We do not go through the channel for foreigners. So there is no need to worry about shifting alliances or delicate or fragile relationships. We are not in a state of flux in relation to our membership, nor are we having to cope with the understandable fickleness of states which are wholly foreign.
§ The relationship is therefore not comparable to our relationship with, let us say, Burma, Bulgaria or Bolivia, where undoubtedly a high degree of tact and discretion will always be necessary. Nor indeed is it comparable to the relationship between the United Kingdom and the United Nations Organisation. On the contrary, it is increasingly, though not as yet wholly, analogous to the relationship between, say, Hampshire County Council on the one hand and Westminster and Whitehall on the other.
§ In these circumstances, excessive secrecy or the mincing of words is not only unnecessary but positively undesirable. Far better that a spade should be called a spade from the point of view of the British people and that the cards should always be on the table.
§ One is always, of course, aware that secrecy in relation to dealings with the EC has its attractions, behind which a hypothetical government might be tempted to shelter. Suppose, for example, that the European Commission was exerting enormous pressure upon a future British Government—I stress 1085 the word "future"—to impose VAT upon children's shoes forthwith, but that the government in question were facing a critical by-election in a marginal seat in eight weeks' time. Suppose that there were arranged a secret deal under which the government made a great show of resistance to the VAT proposals in advance of the by-election and the Commission agreed to soft-pedal its demands but reasonably soon after the by-election the government capitulated, pleading that their hand had been forced, and imposed VAT upon children's shoes.
§ As the Bill stands, it would appear to be a criminal offence to reveal the existence of any such agreement, because, although most of the mud emanating from the revelation would adhere to the government in question, undoubtedly some of it would rub off on the nation as a whole. I suggest that it ought not to be a criminal offence or anything more than a disciplinary offence, if that. For that reason, I beg to move.
This amendment is similar to one which was not moved at Committee, when it appeared in the name of the noble Lord, Lord Hutchinson. However, I welcome the opportunity, even though it is at the eleventh hour, to explain why we should not treat the European Community as if it were not an international organisation when plainly it is one.
It is suggested, I know, that the European Community is not like any other international organisation, because a great deal of the information which it sends to us relates to our domestic affairs. So it does, but then the European Community does not usually send such information in confidence and so the information is not covered by the Bill.
Under the Bill as it stands, even if the information were confidential or related to international relations, it would not be an offence to disclose it under the Bill unless its disclosure met the test of harm in Clause 3. Its disclosure would have, for example, to endanger this country's interests abroad. Given the nature of our relationship with the European Community, such disclosures are most unlikely to be able to meet that test.
However, there are some disclosures of European Community information which clearly could harm this country's interests. They are covered in the Bill and they need to be. I am thinking, for example, of when the European Community acts on behalf of member states in negotiations with an outside state. The disclosure of information relevant to the negotiations could well harm our interests abroad. If this amendment were accepted, that could happen and this country's interests or the safety of our citizens could quite lawfully be endangered. That is a risk which we cannot and need not take and is, I hope, sufficient to persuade your Lordships that this amendment should not be accepted. Certainly the European Community is a particular kind of international organisation. But it is nevertheless an international organisation and the Bill should treat it as such. If we do not do so, we could put in danger our interests abroad.
§ Lord Monson
I am partially satisfied by the noble Earl's reply, but only partially satisfied. He talked about our interests being endangered. So much hinges upon the precise interpretation of the word "endangered". Questions of interpretation have come up at earlier stages of this Bill and again today. If one could be sure that the full rigour of the law would apply only if the interests of this country were really endangered, I should have no worries. What makes me hesitate is the fear that the law might be used in a case of mere trivial disadvantage. However, I do not feel strongly enough about this matter to divide the House, so I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 4.45 p.m.
My Lords, I beg to move that the Bill do now pass. I believe that your Lordships have fully realised the significance of the step which the Government have taken in introducing this Bill to Parliament. Your Lordships have, I think, welcomed our decision to reform at long last this important area of the criminal law.
The noble Lord, Lord Houghton of Sowerby, at Second Reading referred to the Government's,courage in tackling this difficult and controversial subject".—[Official Report, 9/3/89; col. 1619.]I was grateful to him for that. The noble Lord, Lord Jenkins—himself not a wholehearted supporter of all aspects of the Bill—acknowledged in Committee that,this is in some ways a brave Bill. It is trying to grasp a nettle which no other government have grasped for 78 years".—[Official Report, 3/4/89; col. 909.]I believe the noble Lord, Lord Jenkins, was correct and that your Lordships have, if I may say so, made the best of the opportunities for consideration of this Bill.
The nettle which the Government had grasped is this. It is described in the Long Title of the Bill. It is simply to replace Section 2 of the Official Secrets Act 1911. And it is to replace that section by provisions which protect "more limited classes" of information. The Bill therefore formally and fully lays Section 2 to rest. Only those who like the idea of an ineffective and discredited piece of legislation would mourn its passing, I think.
In contemplating the passing of Section 2, your Lordships may remember the words of Malcolm in describing the Thane of Cawdor's death:Nothing in his life became him like the leaving of it".I think that our debates will have been a more than fitting epitaph for Section 2. I doubt, however, if many of your Lordships would wish to go further into that quotation and agree that Section 2 has thrown away its life as if it were a "careless trifle". It has not given up without a struggle!
Nor have the ideas of past generations gone unrecorded in our consideration of this Bill. We have drawn on them and we have learned from them. But the central proposition of this legislation is radical and new. It is to set out in detailed provisions in legislation what we need to protect and the terms on which we want to protect it—and to leave the decisions on each case fully to the jury.
1087 It is fundamental to the nature of this Bill, and to the whole approach which it has adopted, that there is no place in it for ministerial certificates requiring the Jury to accept the Ministers judgment. This was a decision which came as a surprise to those who thought that the Government were locked into the unprofitable and unresolvable dilemma of the ministerial certificate.
I remember with some pleasure the comment of the noble Lord, Lord Mishcon, on 29th June last year when I presented to your Lordships the Government's White Paper on the reform of Section 2. The noble Lord said that he had on false assumptions prepared himself for a violent denunciation of the Government's proposals, but that I had painlessly extracted his teeth. Of course the noble Lord was speaking metaphorically on that occasion. However, it does not seem to have done him much long-term damage as he has been perpetually inquiring, requesting information and challenging—quite rightly so—the precepts of the Bill.
Perhaps because of that initial shock, some have found it difficult to accept the consequences of our central decision to rely on the jury and not on the ministerial certificate. This fundamental proposition requires the legislation to establish within a carefully defined statutory framework as clear and as objective tests for such an offence as are possible. The Bill does this.
I am sorry that some have sought to suggest that, because the Government recognised the need for a consistency of approach and because we recognised also the importance of providing a scheme which would be predictable and reasonably certain in its effect, we were somehow being obdurate.
This Bill is not the Bill which would have accompanied the White Paper which we published last June. It does not follow all the proposals which we made then. Of course it is similar in its structure and outline. Given the general welcome—not to say relief—which followed the publication of the White Paper, it would indeed have been odd if that were not so.
However, the Bill which I introduced to your Lordships House on 9th March had changed in some important aspects from our White Paper proposals. The Bill has been further changed in a number of respects in your Lordships' House. Your Lordships proposed changes and, having heard the arguments, the Government have responded. That is not the attitude of a Government who are not prepared to listen. I know that some of your Lordships would have wished us to respond more often and with perhaps more abandon. But, I make no apologies for having sought to persuade your Lordships otherwise.
I think that we are united as a House in wanting to reform Section 2. We are united in not wanting to pursue the proposal for ministerial certificates; we are united in recognising that we must have some form of effective legislation to replace Section 2 and to protect the nation's secrets. However, we have differed on some of the detail, and we have differed profoundly on whether we can—or need—add further to the basic structure and logic of the Bill without leaving it fatally weakened.
1088 However, I believe that, when the heat of debate has cooled, it will be seen that the Bill provides a fair balance between the freedom of the individual on the one hand and the interests of all our citizens on the other hand, and that it gives justice to the individual, while providing effective and necessary protection to the country's interests.
In commending the reforms in this legislation I should like to acknowledge the contributions which so many of your Lordships have made to our debates. The noble and learned Lord, Lord Elwyn-Jones, has been as persuasive, gracious and well-informed as he always is. Indeed, there has not been an occasion when he has pursued the Government incorrectly.
The noble Lord, Lord Mishcon, and I have profoundly disagreed on some matters of considerable moment. That seems to be the way the fates have decreed we should live. But, he has never been other than unfailingly courteous and—if I may say so—dangerously persuasive.
If I add to my encomium the noble Lord, Lord Hutchinson, my noble friends Lord Home, Lord Boyd-Carpenter, and Lord Renton, and the noble Lord, Lord Bonham-Carter, I hope that other noble Lords will not feel that their contributions have gone unmarked; indeed, they have been marked. This has been a useful and a helpful exercise. I beg to move.
§ Moved, That the Bill do now pass.—(Earl Ferrers.)
§ Lord Hatch of Lusby
My Lords, before the Bill becomes an Act of Parliament I think that we should put on record the distate which is felt in many quarters of the country as regards certain sections of the legislation. Some of us have tried to support the amendments which have been put forward at all stages of the Bill's proceedings. Indeed, we expressed our fears on Second Reading. The noble Earl was totally frank with us when he said, as he did only last week on Report, that the central objection we have raised is a matter of principle. He repeated that argument this afternoon, as indeed he did several times last week. I think that that is a more frank description of the difference between the two sides in your Lordships' House than what he just said in moving the Motion, That the Bill do now pass. He said that we have differed on detail; we have not differed on detail, we have differed on principle. Moreover, we still differ on principle.
From the beginning of the debates on the Bill I have admitted without qualification that I welcome the reduction in the categories of information which are protected from disclosure within the Bill. However, when the noble Earl speaks about universal approval within this House for the reform of Section 2 of the existing Act, I think that he is being a little naive. It is true that we want Section 2 to be reformed, but not in the way which is proposed by means of this Bill. As the noble Lord, Lord Hutchinson of Lullington, pointed out last week on Report, in the existing Act there is provision for the public interest defence. However, under the new Bill that provision is excised so far as concerns the six categories. Indeed, it is on the six categories that my main worries, and the worries of many people outside this house, are centred.
1089 When the issue of public interest has been debated, it has been said several times by noble Lords from the opposite side of the House that if the amendments we proposed were accepted the Bill would then become a charter for leakers. That is not so. The rejection of those amendments has meant that the Bill is now a charter for the protection of secret malpractice. The secrecy that has unfortunately become notorious as a characteristic of British government will, under those six categories, be increased rather than decreased as a result of the Bill.
It is not a Bill to liberalise in those particulars. Moreover, those particulars are of immense importance. In my view, it is a Bill which increases the bounds of secrecy within the categories which are nominated in the legislation. In that sense, it is a Bill which is doing away with what liberality there is under the present Act. Again, that fact was referred to by the noble Lord, Lord Hutchinson of Lullington, on Report.
There are many issues which the Government have never answered. Therefore, in conclusion, I shall put those arguments to them. The noble Lord, Lord Dacre, is unfortunately not speaking in this debate today, although I wish he were here to do so before the Bill is passed. I refer to what he said last week on Report. He drew attention to Irangate. He could also have mentioned Watergate. He pointed out that the principle—again, I accept the Minister's challenge that this is a matter of principle—that the Government are enshrining in the Bill is the one used by the prosecution at Nuremberg. It is the principle that it is not sufficient to say, "We did this because we were under orders from above". There is an individual responsibility.
This matter has been referred to again this afternoon, but when one looks at the history of this country's security and intelligence services—I accept that they are the odd exceptions, but they are important—and, for example, at what was done by the intelligence service to undermine and give false information about the members of the Government of the noble Lord, Lord Wilson of Rievaulx; when one recalls what was done to one of our colleagues, the noble Lord, Lord Glenamara, a member of that Government; and when one recalls the trial of Clive Ponting, it would appear that the Government accept the judge's direction in the Ponting trial that the interests of Ministers are identical with the interest of the state. We do not accept that principle. We do not accept that public interest is to be defined merely by Ministers.
Throughout his speech on the amendment on Report last week the Minister constantly asked us whether we wanted to leave the matter to juries. My answer is, "Yes, we want to leave it to the jury". We wanted to leave it to the jury in the Ponting case, and it was left to the jury. I return to questions that I have asked the Minister from the beginning of the Bill's appearance in the House but which he has not answered. Would he have preferred that the Ponting case not be tried? Would he have preferred that the jury was not allowed to pass the judgment of ordinary people upon the actions of Clive Ponting? Does he believe that the Ponting case should not have been allowed to go to trial, as I understand it would not 1090 be if the Bill becomes an Act? Would it not have been the judge's duty to direct and not advise the jury? That is an example of how the Government distrust the people. They believe that they know better.
I shall add a further question that I have asked the Minister but which he has not answered. Is it not the case that under the new Act the security service would be unable to retract the evidence that it gave to the noble and learned Lord, Lord Denning, in the Stephen Ward case—that Stephen Ward was not a member of the security service?
This afternoon the noble Lord, Lord Renton, referred to the Wright Spycatcher case and said that the case had done immense damage to this country. What damage? I believe that the Government did immense damage to this country's reputation, but what damage was done to this country's interests by the revelations (true or false) in the Spycatcher book? This is a closing down, a clamping down, on information. The individual's right and duty, if he or she sees a crime being committed or a malpractice being accepted, to let the public know, even if he or she is within the security service, is being destroyed in the six provisions within the Bill.
For those reasons, it would be wrong for the Bill to leave the House characterised as a liberalising Bill when in practice, in those specific categories, the Bill is much more reactionary than Section 2 of the existing law. It re-emphasises the Government's obsession with secrecy and with preventing vital information going to the public. It is a characteristic that the Government have shown in many different ways. It is a characteristic which we have tried unsuccessfully to remove from the Bill. The time must come when this country achieves a reputation for freedom of information rather than secrecy.
§ Lord Mishcon
My Lords, I wonder whether the noble Lord will give way for a moment. It may help everyone. It is obvious that some of us. are disturbed that the Motion, That the Bill do now pass, should proceed without a vital matter being studied. I appreciate that no one wishes artificially, or for any wrong reason, to delay the passing of the Bill. It might be of convenience to the House, and to those who are interested to see that something should be put right, if the House were to adjourn so that that vital matter might be considered. I wonder whether that view is accepted by the Government Benches?
My Lords, I am grateful to the noble Lord, Lord Mishcon, for having covered a difficult position with courtesy and clarity. I realise that the noble Lord and some of my noble friends are genuinely concerned about matters which they feel have not been properly addressed. I tried to explain to your Lordships why I believe that the matter they have raised is properly addressed. In his generous way, my noble friend Lord Renton did not seek to press his amendment, for reasons which he gave. I do not wish—perhaps I may use the word—to "steamroller" the Bill through your Lordships' House if there is a matter of concern. I understand 1091 that it is procedurally difficult to amend the Bill because it has passed its Third Reading. If it would be for the convenience of your Lordships to adjourn the debate on the Motion, That the Bill do now pass, so that there can be discussions and clarifications outside the Chamber, I should be content for that to happen.
If that course meets with your Lordships' approval, I am prepared to propose it. We could perhaps take the Police Officers (Central Service) Bill and the Disabled Persons (Northern Ireland) Bill forthwith, and return later to the Motion, That the Bill do now pass.
My Lords, if that course has your Lordships' approval, I propose that we postpone the debate on the Official Secrets Bill during pleasure.
§ Lord Mishcon
My Lords, perhaps I may at once say that from our point of view we accept the suggestion with gratitude. I have only one personal embarrassment which I wish to place before the House. I should like to take part in the discussions but I am interested in the next Bill. I hope that the noble Lord who will move the Third Reading of that Bill and the Motion, That the Bill do now pass will not think me discourteous if I am absent from my seat. Perhaps I may tell him in advance that I have no intention of opposing either the Third Reading or the passing of the Bill.
§ Lord Houghton of Sowerby
My Lords, is this another official secret or may we be told what it is about? I am bound to say that for the last half hour I have found it distracting to see many comings and goings around us between those who, we felt, had some problem which they wished to be resolved. What is the trouble, and for how long are we asked to suspend the debate? Some of us are already building up our eloquence on the Motion, That the Bill do now pass.
My noble friend Lord Hatch of Lusby has had a wonderful opportunity to be the one voice to be heard at this stage in the debate on the Motion, That the Bill do now pass. Why cannot we proceed further with the debate until it seems to be exhausted, and then attend to whatever difficulty has arisen? Is it that it was discovered, after the noble Lord, Lord Renton, had sat down, that there was something in what he was saying, and it is feared that it is too late under our normal procedure for the House to take notice of his remarks, and write them into the Bill?
Is the difficulty that we are now on the Motion, That the Bill do now pass and we have no procedure for recommitting the Bill to the Report stage so that an alteration may be made to it which apparently we cannot make when we have once passed the Third Reading? I think this is so unusual that there should be a word of explanation. For how long are we to be sent away?
§ Lord Belstead
My Lords, perhaps I may add to what my noble friend Lord Ferrers and the noble Lord, Lord Houghton, have said. What happened about half an hour ago was that amendments which were moved by my noble friend Lord Renton were replied to by my noble friend Lord Ferrers. Both my noble friend Lord Renton and the noble Lord, Lord Mishcon, on the Opposition Front Bench, felt that they did not agree with the Government reply. My noble friend Lord Ferrers then said that he would look into the matter. However, the noble Lord, Lord Mishcon, quite understandably said that it was no good looking into the matter because the Bill was now about to embark on its Bill do now pass procedure.
My noble friend Lord Ferrers has now got to his feet during the Bill do now pass procedure and has said that he would be very sad and would very much deprecate the Bill passing, with a feeling both on the Government Benches and on the Opposition Benches that a point which should be examined had not been fully looked into. However, he was very careful to say that the advice as he has it at the moment is that the Bill now in your Lordships' House is no longer amendable because we have embarked on the Bill do now pass procedure.
Nonetheless as a courtesy, and in order to make quite sure that we have a word both with noble Lords opposite and noble Lords in other parts of the House, as well as on the Government's own Benches, about the procedure, and perhaps a further word in private about the merits, my noble friend was proposing to the House that the procedure on the Bill do now pass should be adjourned for the next two pieces of business. I have to say to your Lordships that for that to happen we should have to be unanimous. I have a feeling that the House is not unanimous about it.
There is another proposal which I can put to the House which can be agreed to by a majority. It is that the House do adjourn the present proceedings on the Bill do now pass for, say, half an hour. I think that probably it would be to the convenience of your Lordships' House, if, on behalf of the Government, I now put that Motion to the House, that we adjourn for half an hour in order to be able to discuss the issue which is troubling noble Lords. Then, in half an hour's time exactly we should return to the Motion, That the Bill do now pass debate and complete the proceedings on the Bill. So, if I may, I shall put to your Lordships that the debate be adjourned. If your Lordships agree to that Motion, then I shall propose that the House do now adjourn during pleasure for half an hour. The first thing I must do is to put to your Lordships that the debate be adjourned.
§ Moved, That the debate on the Motion, That the Bill do now pass be adjourned.—(The Lord Privy Seal, Lord Belstead).
§ 5.15 p.m.
§ The Deputy Chairman (Lord Nugent of Guildford)
My Lords, if noble Lords will allow me, we must have something before the House. The Question is that the debate be now adjourned.
§ Lord Sefton of Garston
My Lords, as regards the adjournment of the Bill, I am puzzled as to why we have two Motions before the House at the same time. However, let that go: I am no expert on parliamentary procedure. I am very disturbed indeed about the talk of some people having discussions in private. The suggestion is that within half an hour we shall reassemble and discuss the matter again, following some discussions in private. I do not know with whom and I do not even know the difficulties that have arisen from something which the noble Lord, Lord Renton, said.
I do know this. I am entitled to know if my vote is being requested at any time. I do not believe that it would be possible within half an hour to produce a statement of whatever solution the Government intend, to resolve these problems that have arisen which previously caused so much to-ing and fro-ing by leading Members on the Front Benches. I do not know whether it is possible or not. However, I do know that if the House is to be treated with respect on an extremely important matter which has nothing to do with party politics, then the House is entitled to a statement. Therefore, I oppose any adjournment unless we have an indication that before the House reassembles we receive a written statement from the Government so that everybody in the House knows where they are.
My Lords, I wonder whether I may pour a little oil upon waters which my noble friend has made rather more troubled than perhaps they need be. The House is united on one thing: that when we examine legislation and act as the House that is responsible for revising legislation we do our job properly and see that what passes through the House is what is intended by the House in the best interests of the nation.
A point has arisen which has not a scrap of politics in it. It is whether or not a section of this legislation carries out what is the unanimous intention of the House by way of protection of our citizens. It has nothing to do with imparting information; nothing to do—I am delighted to be able to tell my noble friends—with any of the defences that we should have loved to have seen in the Bill. It is purely a matter of whether or not proper protection is given to information which could endanger citizens of this country within the United Kingdom.
The opportunity has been very graciously offered for those who are concerned with the matter to discuss it and see whether we can do anything about it, if there is anything to be done. I am perfectly sure that after half an hour we shall be able to inform all those Members of the House who are sufficiently interested to come back after half an hour as to exactly what has transpired.
§ On Question, Motion agreed to.
§ Lord Belstead
My Lords, I now beg to move that the House do adjourn during pleasure for half an hour exactly.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 5.20 to 5.49 p.m.]1094
§ Debate resumed on the Motion, That the Bill do now pass.
§ Lord Belstead
My Lords, I think it is right that as Leader of the House I should report to your Lordships what was discussed during the brief adjournment which we have had. My noble friend Lord Ferrers and I met those of your Lordships on all Benches who were interested in a particular point which was raised by amendments moved by my noble friend Lord Renton at Third Reading of the Bill.
In our discussions there were two matters which were at issue. The first was the procedural question On the advice that I have received the position is quite clear. The House has now completed its consideration of the Billon Third Reading and there is no procedural possibility of amending the Bill herafter.
The second matter which we discussed concerned the merits of the amendment of my noble friend Lord Renton. That amendment was discussed at Third Reading of the Bill and was then withdrawn by my noble friend.
That is what has passed in the discussions which we had in the half-hour adjournment. I now suggest that I am followed by those of your Lordships who wish to continue with the debate on the Motion that the Bill do now pass.
§ The Deputy Speaker (Lord Nugent of Guildford)
My Lords, the Question is that the debate be now resumed.
§ Lord Mishcon
My Lords, I believe that the House will be grateful to the noble Lord the Leader of the House for the explanation of what is an unusual procedure in your Lordships' House; namely, that the House be adjourned during pleasure so that two very important matters could be discussed. As the noble Lord the Leader of the House has said, one of those matters was the procedural point as to whether anything could be done on the basis that there was merit in the amendment that has been moved by the noble Lord, Lord Renton. As the noble Lord the Leader of the House has said, it was ruled that Third Reading having taken place nothing could be done.
As regards the merit of the amendment I hope that the noble Earl will think that I reflect accurately what he said would be done; namely that without altering the view that he had expressed earlier on the advice he had received he was prepared—in view of the weight of opinion in regard to that particular amendment—further to consider the matter. What action may result from that further consideration obviously cannot be forecast by any Member of your Lordships' House at this moment. Having said that, I now move on to the Motion before the House, That this Bill do now pass.
The noble Earl referred to the fact that I had made comments on the White Paper in which I said that I had come prepared to attack but that my teeth had been withdrawn somewhat painlessly by something which had occurred in regard to that White Paper. The noble Earl referred to that quotation with a smile. It is only fair to say that before the issue of 1095 the White Paper the press said, in very pronounced terms as though they were very substantially led to believe it to be the case, that certification would be back again and that in the White Paper we should see even more strenuous efforts than had been forecast on the part of the Government to see to it that the legislation was very strong legislation. I came prepared to wage that battle only to find that, if subtlety can be ascribed to the Government, if there had been any leaks they had been subtle enough to see to it that the eventual White Paper did not propose certification but left certain matters to the jury. That was why I made the remark that I did.
It has not in any way affected the view of those who sit on these Benches that the Government, while to be praised for their courage in dealing with Section 2, have not done so in a way that the nation would have wished and certainly not done so in a way that we would have wished. They have left defenceless those who, in our view, should be defended. I shall not treat noble Lords—if "treat" is the right word; I should say "inflict upon" noble Lords—to a repetition of the arguments which we have advanced from these Benches, and which have also been advanced from other benches, with regard to the defences of public interest and prior publication.
It is with no regret that one sees the end of Section 2. It is with considerable regret that one see the legislation leave this House without vital matters such as protection of freedom of the subject having been settled. Nothing has been said in regard to freedom of information. Only secrecy is protected. There is not one bit more of a statutory right for any citizen of this country to learn more than he does about the secrets of government.
I do not think that I can say anything further at this stage other than that some parts of the Bill are measures that one wants to see in a statute of this kind. There are others that one regrets to see. I am only sorry that there now appears to be a habit in government to take it for granted that it is a display of ministerial strength to resist every conceivable amendment that one can and that it is a triumph for the Government when they take through a measure almost completely unamended, if not completely unamended. It is not a triumph for democracy if that happens, nor is it a triumph for this House in its capacity as a revising Chamber.
I hope that in future measures there will be respect, such as we have not experienced in this case, for arguments that are good arguments and that there will be some flexibility where, so far as we on these Benches see, the rule is no flexibility at all and no surrender. This is not a battle; it is, I hope, a meeting of minds.
§ Lord Bonham-Carter
My Lords, I should like to associate myself with the remarks made by the noble Lord, Lord Mishcon, and add that, to my recollection, the account of the meeting that he and the noble Lord the Leader of the House gave is entirely accurate. Had I known that the amendment of the noble Lord, Lord Renton, would cause such a brouhaha and such legal problems—not that I could understand fully the technicalities of the arguments 1096 on which the lawyers were engaged and which could quite happily have gone on for the rest of the evening—I should have said that my advice was that the interpretation of the noble Earl, Lord Ferrers, was correct. However, that is now water under the bridge and we reach this last and slightly melancholic stage of the Official Secrets Bill.
The noble Earl, Lord Ferrers, congratulated the Government so much on the splendours of the Bill that they had introduced that I feel it is unnecessary for me to say anything laudatory about it at all. It had crossed my mind that I might think of one or two words of praise to utter, but these have now all been uttered by the author of the Bill and I feel that it is unnecessary to add to them.
At Second Reading I said that the way in which the Government treated the amendments put forward in this House would be a measure of the respect in which they held the House. By that criterion, their respect is minimal, as is their respect for the other place and for a number of distinguished Back-Benchers in another place and some distinguished Back-Benchers in this place. After all, the Bill is one of some constitutional importance. It is about the liberties of the people of this country and the degree to which they have to be limited, clinched and restricted in the interests of security. We all agree that there must be security and that that means limitations of liberty.
The question is: where do you draw the line?
When it was suggested in the course of our debate that those limits had been stretched too far and that the right of the public to information was something that was important and should be respected, the noble Earl, Lord Ferrers, tended to reply, "This is an Official Secrets Bill; it is not a freedom of information Bill". That may be so, but when drafting an Official Secrets Bill those who believe that freedom of speech is a fundamental right consider that any government should bear in mind the restrictions that they are imposing. The liberties of the subject should be very much to the forefront of their mind.
Secondly, I should have thought that in a Bill of such constitutional importance most governments would attempt to reach some kind of consensus in order to produce a Bill to which both sides of the House could agree. But that is not the present Government's way. The present Government do not believe in consensus. In today's Independent is a report of a conversation between the Prime Minister and Sir Anthony Parsons. In effect, the Prime Minister says to Sir Anthony, "Do you think that anyone believes any longer in consensus politics?" In reply, Sir Anthony says, "Yes, I do. Quite a lot of people believe in it. I do myself'; to which the Prime Minister responds, "I regard the people who believe in that as quislings and traitors". That is the origin of this kind of legislation and the way in which Bills are thrust through Parliament, as was rightly mentioned by the noble Lord, Lord Mishcon.
Finally, I should like to say that I agree with the noble Lord, Lord Hatch of Lusby. The differences which came up time and again in the course of the debates on this Bill were quite profound. They were differences of view. The fact of the matter is that 1097 there are two views—I have said this before so I hope that noble Lords will forgive me for repeating it—of the nature of liberty, freedom of speech and the right to information.
There is one view, which is expressed in the First Amendment to the United States Constitution and in the European Convention on Human Rights; namely, that liberty is a fundamental right and one tinkers about with it at great risk. One treats it rigorously and carefully. The other view—the one adopted by the Government—is that liberty is a residual right. Liberty is what is left after statutes, common law and practice have eroded it. It is just that little bit that is left.
I and my noble friends on these Benches believe that liberty is a fundamental right, as in the First Amendment. That is why we found aspects of the present Bill so disturbing and were so alarmed at the refusal to accept the public interest defence. That is why we were so disappointed that prior publication was not taken as something which could be handled constructively. I am sorry that five days of debate in this Chamber and five days in another place have led to so little progress.
§ Lord Renton
My Lords, speaking of the Bill itself, I take a different view from that expressed by the noble Lords, Lord Bonham-Carter and Lord Mishcon. We all agree that liberty is fundamental to democracy and civilisation, but one cannot have liberty unless one lives in a country that is secure. Goodness knows, in our lifetime—and some of us are fairly old—we have lived through two of the worst wars in history and have known our country under threat in time of peace as well as in war. These days we also have to deal with terrorism. While accepting that liberty is a fundamental principle, we must realise that liberty becomes a nullity if there is not security.
I believe that the Government deserve to be congratulated on this Bill. They have been very brave. They have at last got rid of the catch-all Section 2 of the 1911 Act. Somewhat ironically they have replaced it by six lengthy, rather complicated and very technical main clauses which create new offences under this Bill. But put together those new offences do not go so far as Section 2. Incidentally, those six new clauses which create the offences have to be supported by 10 auxiliary clauses. Therefore, this was not an easy Bill. It was a very technical Bill and I think that my noble friend Lord Ferrers deserves great praise from all corners of the House for the way in which he has piloted it through this Chamber. I was glad that my noble friend the Leader of the House also took part in the discussion on some of the more important matters.
My noble friend Lord Ferrers sometimes was placed at a disadvantage, however unwillingly it was done, by the fact that some Members of the House, especially those who have legal experience, such as the noble and learned Lord, Lord Elwyn-Jones, and the noble Lords, Lord Mishcon, Lord Boyd-Carpenter and myself, felt it right to try to get the Bill technically in proper form. It should not lead to endless wrangling in the courts, starting perhaps with the magistrate's court and going to the Old 1098 Bailey or the criminal courts outside London; it should produce a fairly straightforward situation for the defence as well as for the prosecution. But owing to the way in which the Bill is constructed every one of those offences, instead of being stated in broad terms, is hedged around with a great deal of detail. Personally I do not think that that was unavoidable. There has been over anxiety, an excess of zeal and a love of detail which have inspired those on the official side and among the draftsmen who have been responsible for advising Ministers on this matter.
I turn now to the efforts that I made when I detected what I thought was a real defect in the Bill; and I was not alone in my belief. It has led to the rather strange and almost unprecedented situation that we have experienced today. I did not raise this point for the first time at Third Reading. I raised it at length and it was discussed in depth at Report stage. My noble friend Lord Ferrers was good enough to say that he would write to me about this matter, but on rereading his letter I am aware that it does not answer the point. As the noble Lord, Lord Mishcon, argued, I hope that my noble friend Lord Ferrers will arrange for it to have further consideration. It is very important.
The simple point is that in the opinion of some Members the Bill does not make it an offence to disclose matters which could endanger the lives of citizens of this country. It is as simple as that. Lots of other offences are created, but not that one. Alas, it is too late now for the matter to be put right while the Bill is before us. But it is a point of which we should not lose sight in the years to come.
§ 6.15 p.m.
§ Lord Houghton of Sowerby
My Lords, I welcome this Bill and, like many noble Lords, I am relieved that at last a government have tackled the long-standing difficulties, doubts and dissatisfaction with the Official Secrets Act 1911. I am astonished to discover that when I entered the Civil Service in 1913 the Official Secrets Act was two years old. It was drawn to my attention and I have had to live with it ever since. The Inland Revenue decided that, although I left the department to become a full-time officer of a Civil Service union, the oath of secrecy that I had sworn so many years before still held me in its grip to my dying day. I am not sure that we would all accept that construction of the Official Secrets Act or the doctrine behind it. Nevertheless, as a former member for many years of the Civil Service national Whitley Council, and having seen many cases go through the courts which have disturbed the staff element as well as the official element, such a Bill is long overdue.
Many noble Lords may not have been in the House when my noble friend Lord Hatch spoke. He was very strong and eloquent in his denunciation of this Bill. I felt a little deprived that the adjournment not only interrupted our proceedings but detracted from my enthusiasm to tackle my noble friend Lord Hatch. However, we have to realise that we are the prisoners of our parliamentary system. It seems absurd that on a Bill of this kind, with all the amendments that have been put forward by the Opposition, the House should divide on party lines. 1099 Some better agreement could have been achieved with this Bill. I cannot believe that this side of the House alone believes a greater liberalisation of our official secrets legislation is desired.
I see no sign in my association with the Labour Party that it is all that liberally disposed towards the Civil Service. In those circumstances, I wonder what a Labour Government would have done about this Act had they tackled it, as they failed to do. However, the legislation should have been tackled. Everybody realises that. When such a matter has existed without remedy for so long because of the difficulties and complexities of legislating on the subject, there should have been a real effort to reach a consensus on this Bill.
The Liberal Government passed the 1911 Act. They were responsible for putting Section 2 into the Act. A Labour Government have since been in office for years. Conservative Governments have come and gone. It is only now that we are tackling this issue. It is sad that it is being tackled in a way that still leaves division within this House. I do not think that there should be division. There should be a formula for official secrets that would have enabled us to reach agreement on a non-party matter.
What is at stake here? It is the stability, integrity and loyalty of our Civil Service, not to mention government contractors who can probably give away as many secrets as civil servants and who must hold their own counsel on matters that they are handling on behalf of the Government. But there are some issues that I believe must be put above all others. One is the position of the Civil Service in our system of administration and government and in our relations between bureaucracy and the public. No opportunity for an individual civil servant to blow the whistle on a matter that he feels is quite intolerable and should be exposed should outweigh the considerations of integrity in the Civil Service.
If we wish to deal with this matter in a modern way, we need an audit of administration. We have had the Comptroller and Auditor General for over 100 years. With regard to any mischief, fraud, or indications of misbehaviour with public expenditure and finance, he is the man to go to. I have said that before. We do not have his equivalent in the Civil Service to whom civil servants can go if they wish to disclose their worries about something that they may believe is going on. We now have a National Audit Service which is doing splendid work. We need an audit of administration to which complaints, doubts or difficulties can be taken when necessary.
However, I am, and always will be, absolutely against placing on the individual civil servant the right for him to determine what he will disclose in the public interest. Moreover, I believe, as does the noble Lord, Lord Renton, that the more defences one erects in this Bill, the more one excludes all others, and the more one gives a temptation to a person who may be accused, or is feeling tempted to commit what he fears may be a breach of the Act, to consider under which of the exemptions he will plead. I believe that that is bad either way. When a civil servant takes upon himself the responsibility of 1100 a disclosure of profound importance and with far reaching consequence, he should either have someone to whom he can unload his sorrows and doubts and on whom he can shed the responsibility, or he has to put his head on the line. We cannot prescribe for that. He must feel so strongly about it that he is willing to put his career at risk to discharge a public duty.
Since these cases must go to a jury, the jury may take a common sense line although there are no signposts of what the defences should be. Even if the judge directs the jury that a certain defence is not within its purview a jury can still find a man not guilty, as it did in the Ponting case. However, Ponting was a member of the Civil Service, not of the security services. He was a member of the administrative class. I submit that he had opportunities of taking his case, such as it was, an important one no doubt, to higher authorities. The mischief in that case was that he selected a Member of Parliament to whom to make his confession. The matter was straight away plunged into the House of Commons and politics. That was the trouble there.
One cannot prescribe for every situation. One cannot define everything. This Bill tries to satisfy the principles of our law making: first, that the law should be clear, and, secondly, that so far as possible it should be certain. This is not a liberalising measure. I dispel any idea that this is a liberalising measure with regard to the Civil Service. The measure brings practicality to Section 2 of the Official Secrets Act which has existed in all its clumsy nakedness for 78 years. It makes it an Act with which the courts can deal, as a substitute for Section 2.
Those concerned can identify from the new Act what their responsibilities are. Do not let us forget that in the background we have the discipline within the Civil Service. This Bill makes no difference to that. Disciplinary measures can be taken against a delinquent civil servant under this and any other legislation under which he may be up to some mischief. It is there all the time. We must not lose sight of it.
The Government have done a good job. Perhaps a better job might have been done. However, I do not think that we could have done business with my noble friend Lord Hatch. In my humble judgment, he has taken a fundamentally different view of this situation from those of us who regard it as a matter of public administration. Much of what he said would drive us to a political Civil Service. We would have "placed" men in government positions every time that there was a change of government. That would be bad. Otherwise one must preserve the neutrality but gain the co-operation of the Civil Service. That cannot be done by giving any encouragement, or even suggesting for that matter, that civil servants hold individual audit of administration posts, that they have responsibility for the probity of everyone around them and that if they see anything which they regard as putting the public interest at stake they are free to make disclosures. The Civil Service is not walking about Whitehall its pockets stuffed with official secrets looking for an opportunity to give them away if only the Act would describe enough defences. That is not the position. 1101 Such problems are rare and, if they do arise, are mostly complex and difficult. I do not think one can prescribe for every eventuality. Someone has to take the decisions; martyrdom may follow. But there is nothing new in that, either in the Civil Service or elsewhere.
Let us give the Government at least a word of praise reflecting our satisfaction with the Bill. My noble friends can say what they like, but no government since 1911 have tackled the problem. Everyone who has borne office, including myself, has some responsibility for not having tackled it.
I hope that my speech does not give discomfort to my noble friends; in my view this is not a party matter. I put my interests and my work for the Civil Service over the past 40 years much higher than any party differences over the Bill; that is why I am expressing myself so forcefully.
§ Lord Hatch of Lusby
My Lords, before the noble Lord sits down, will he accept for the record a correction to the impression he gave? The debates and the Divisions on the libertarian amendments have been supported on all sides of the House. Will he be fair to noble Lords on the other side of the House who have spoken as we have on this side on the question of public interest and who have voted as they have spoken?
§ Lord Houghton of Sowerby
My Lords, what my noble friend has said is true. The only thing I can say is that when there has been a Division, that is how the Divisions have been.
§ Lord Thomas of Swynnerton
My Lords, I believe that someone from outside, not having heard the earlier discussions on this Bill, would be somewhat amazed that no members of the Opposition, with the exception of the noble Lord, Lord Houghton—I am not absolutely certain that he can be classified as a member of the Opposition—seem to grasp the great liberalising quality of the Bill. After all, as many noble Lords pointed out during the Second Reading debate, the Bill frees from criminal charges at least 95 per cent. of domestic politics. Anyone who in the past has tried to gain information, admittedly not relating to the security and intelligence services or to the foreign service, has often been thwarted by civil servants or directors of other government agencies by reference to the Official Secrets Act.
I remember myself once trying to find out what the plans were likely to be for the projected new British Library. I was told that it was an official secret. I know of someone who tried to find out what were the guidelines for prison visiting in a certain prison. She was told that it was an official secret. Both instances occurred during the term of the last Labour Government. As I said during Second Reading, I believe the Opposition have shown themselves rather churlish in their reaction to the main part of the Bill. I am certain that when they come later to consider their attitude to the Bill, they will recognise that.
Having ventured to speak, I want to make three more points. In general, I felt a good deal of 1102 sympathy with the speech and the amendment of the noble Lord, Lord Monson, about whether the European Community should, for the purposes of the Bill, be regarded as an international. Organization. Indeed, I had thought of putting down an amendment of that nature myself. I did not do so as I did not think that discussion of the Official Secrets Act in this House was an appropriate occasion for a definition of what the European Community is or is not. I continue to think that. Nevertheless, in the long run, if the implications of the Single European Act are carried into practice, we shall have to consider the matter again.
Secondly, noble Lords may be aware that I supported an amendment which hoped that in certain circumstances, when the questions at issue were no longer of urgent security importance, ex-members of the security and the intelligence services might, if they went though the proper channels, be able to publish some account of their lives and work. The amendment echoed amendments put forward by Members of another place. The discussions on that amendment, which my noble friend Lord Dacre of Glanton introduced, were full and interesting. Although not fully satisfied, I have to say that the comments that in rare and exceptional circumstances authorisation would be given by the appropriate Minister or the appropriate head of department satisfied me, as I believe they partially satisfied my noble friend Lord Dacre.
We were worried that procedures in the past which had enabled members of those services, from Sir Paul Dukes in the 1920s to J. C. Masterman in the 1970s, to publish accounts of what they had done would not be available to their successors who might not be able to do the same. I felt in general that the Government appreciated the point. The discussions were full and interesting and I believe that in the future such recollections will probably be published.
Much discussion of the Bill, if one considers it carefully, has related to an important but most unusual set of circumstances which were envisaged by the Opposition; namely, what should be done if someone in the security or intelligence services discovered something which might be described as gross iniquity, gross incompetence or treachery. What should be done in such circumstances? The Government took one view and the Opposition another. I was sympathetic to many of the speeches made by noble Lords opposite. But the circumstances as envisaged are most unusual and rare; so I do not believe our discussion, interesting and important as it was, should affect our general judgment on the Bill. I believe the Bill to be generally liberalising and in most respects something close to a public information Act.
§ 6.30 p.m.
§ Lord Sefton of Garston
My Lords, I do not believe that at this stage we should enter into any details of the Bill at all. To my mind this is the parliamentary way of saying that Parliament has had its say. It has now constituted a Bill and we should consider it as a whole. Looking at it as a whole we should ask: are we satisfied or not satisfied that this meets the wishes of Parliament and the people of the country? I look 1103 at the Bill from that angle alone. I took no part in its proceedings because I preferred to leave it to those more expert in the Civil Service and in secrecy matters.
However, I watched it with interest. I see the conduct of the Bill taking the same pattern as that of other fundamental Bills which have passed through this House. They have offended many people and have not had the support of a majority. There were Bills such as that providing for the abolition of local government because somebody determined that it was being awkward. There were other Bills in respect of which the Opposition in a genuine attempt at improvement put forward amendments. Not one was accepted.
What has happened in relation to this Bill? There has been no acceptance whatever of the other point of view. That is the major problem faced by the Bill. I opposed the moving of the adjournment because it was evident that it would achieve nothing. The adjournment could tell us nothing and it was a waste of half an hour. The Government had got themselves into a mess because they refused to see the wisdom of an amendment moved by someone on their side. That is typical. The Government's attitude is that if they produce a Bill and table amendments, that Bill is right. They will not hear one word against it.
I should like to say to the noble Lord, Lord Renton, that freedom and security do not always go together. During our lifetime there have been two states which were very secure but one would not wish to praise them for being the custodians of safety. I refer to the Soviet Union and to Hitler's Germany. Of course they were secure but there was not a great deal of fundamental freedom. That was because people inside those states could not, in one case, and did not, in the other case, see the elective dictatorship which grew up in Nazi Germany without a majority of support.
The debate is about whether we should pass the Bill. I am forced to rise to my feet to support my noble friend Lord Hatch of Lusby. I do not know whether he will press the Motion to a vote—I have not asked him. However, I can assure him that if he decides to do so he will have something that I did not have when I acted on a Third Reading. He has the promise of a teller.
"Consensus" may be a dirty word and it may be very efficient from the point of view of a leader of the party who does not care much about the opinions of people who "are not one of us". But consensus is the very stuff of our democracy. This Bill is the product of an elective dictatorship and I believe that we should record our disapproval by voting against it.
My Lords, that was a stirring speech from the noble Lord, Lord Sefton of Garston, but I found it peculiarly difficult to agree with any of it. When the noble Lord says that he wants consensus I reply by asking: how can you have consensus when you have views as far apart as that expressed by the noble Lord— —
§ Lord Sefton of Garston
My Lords, I do not mind being criticised. I did not say that I wanted consensus. I merely pointed out that some people in political life will not wear it at any price.
My Lords, that is that! I expected the Bill to be difficult because the whole issue of official secrets is difficult. The drafting of the Bill is difficult because its nature is difficult. However, I had not expected the difficulty to arise on the Motion that the Bill do now pass.
My noble friend Lord Renton was kind enough to say that he felt some sympathy because I was disadvantaged by not having a legal background such as he has. I was grateful to him for that understanding. However, I assure my noble friend that from the start it is a formidable experience to be confronted by my noble friend Lord Renton, the noble and learned Lord, Lord Elwyn-Jones, the noble Lord, Lord Mishcon, my noble friend Lord Boyd-Carpenter and the noble Lord, Lord Hutchinson of Lullington. If I have not measured up correctly or with equal ability then I apologise.
The Bill has been difficult because its whole nature is difficult. I make no bones about it and do not suggest otherwise. Equally I accept the fact that your Lordships have tried to get it right and have wanted to do so. I believe that to be wholly worthy. The noble Lord, Lord Mishcon, said that he wished the Government would have respect for the arguments of other people. We have respected the arguments. There have been occasions on which we have been unable to agree with the arguments but I believe that, taking his normally generous view, the noble Lord will agree that they have been respected. Of course there is a divergence of views.
The noble Lord, Lord Houghton of Sowerby, said that this measure is long overdue. He is entirely right. It is long overdue because it has been difficult to obtain any consensus of opinion upon it. Ten years ago we tried to do so and produced a Bill which did not meet with the accord of Parliament. It has not been an easy matter.
I was sorry to hear the noble Lord, Lord Houghton, say that it is not a liberalising measure. I believe that it is. It is a brave step to decide to limit the scope of criminal law as proposed in the Bill. If it limits the scope of the criminal law then, presumably, it must release some people who would otherwise be curtailed by it. At least in that respect it is a liberalising measure.
My noble friend Lord Thomas of Swynnerton agreed with that view and I was grateful to him. He said that 95 per cent. of those who would otherwise be caught will not now be so. He is a brave person for giving percentages but I should not wish either to confirm them or to follow him. However, I shall say that he has pointed his arrow in the right direction.
1105 The noble Lord, Lord Houghton, said that because of the adjournment he did not have the opportunity of "going" for the noble Lord, Lord Hatch of Lusby. He made up for that on our return. The noble Lord, Lord Hatch, again mentioned his great concern about the Bill. He returned to the question of the Ponting case which he said that I have not answered. He is right: I have not done so. I do not propose to do so because in the Bill we try to see a new range of protections and freedoms for the future. The principle is that the measures can be decided by the jury. We do ourselves a disservice and cause frustration by trying to ask how such and such a case would have been altered, and we also do so by asking how a case which was decided some years ago in different circumstances would be changed under a new set of circumstances. How can one tell? How can one say what view a jury will take? I do not believe that that is a profitable exercise.
Some noble Lords have said that it is necessary to have a consensus but I believe that to be difficult. There is a wide divergence of opinion and one must try to obtain a common denominator of agreement. We have tried to achieve that. I believe that that is what your Lordships have agreed to. There has been a common denominator of agreement both in another place and in your Lordships' House. We have not been guilty, as the noble Lord, Lord Sefton of Garston, said, of not accepting anyone else's views. If he has followed the proceedings on this Bill, he will see that we have accepted other views and have brought forward amendments to accommodate those views.
Perhaps I may say this on the situation in which we find ourselves, because I believe that it is quite important. There was an unusual occurrence in that we adjourned in the middle of this debate on the Motion that the Bill do now pass. I believe that it is wise to look back and see what happened. My noble friend Lord Renton tabled an amendment on Third Reading on a matter about which he was quite concerned. He took a certain view about it. I tried to give the Government's view; namely, that we felt the noble Lord was wrong. My noble friend Lord Renton thought that we were wrong. That is not an unusual state in which your Lordships find yourselves periodically. The matter was up to my noble friend, because had he felt strongly he could have put it to a Division. I believe that out of courtesy and practicality he decided not to do that. Therefore, that stage passed.
My noble friend and other noble Lords were still concerned that there was a difficulty, and they did not feel happy. Before I suggested that the House be adjourned, I explained that we did not wish to push—and I believe that I used the word "steamroller"—the Bill through if there was a degree of concern. Therefore, we adjourned the business in order to try to see whether we could better understand the areas of concern.
I am bound to tell your Lordships, as has my noble friend Lord Belstead, that the House has completed its consideration of the Bill on Third Reading and that therefore there was no procedural possibility of amending the Bill thereafter. However, on a matter as sensitive as that I did not wish to see your 1106 Lordships inconvenienced or disgruntled, if I may put it that way, over the way in which this matter was handled. Therefore I wished to give your Lordships the opportunity of discussing the matter, and we have done that.
Procedurally the amendments cannot be made because the Bill has reached its present stage. The noble Lord, Lord Mishcon, asked whether anything could be done as there was merit in the amendment of my noble friend Lord Renton. The noble Lord, Lord Mishcon, said that there was merit in it, but I believe I should point out that although the Government understood the reason for the amendment we took a contrary view. As I said and as I repeat, I shall draw this matter to the attention of my right honourable friend. It is right that I should do so as it is a matter of concern. What action can be taken thereafter is, as the noble Lord, Lord Mishcon, rightly said, a matter for the future, if action should be taken. I do not say whether or not action should be taken. However, I undertake to draw the point of concern to the attention of my right honourable friend. I hope that the noble Lord, Lord Mishcon, and my noble friend Lord Renton will accept and understand that.
I am grateful to your Lordships for the consideration which has been given to this Bill. I believe that it is a matter of considerable significance that the Government are ready to leave it to the jury to decide the main issues which the Bill establishes. The Bill which leaves your Lordships' House is significant and is a necessary reform of an area of our public life which for far too long has defeated the ingenuity and the imagination of Parliament and the Executive. I hope that this Bill will meet the needs of the nation because it properly protects the interests of the nation—that much arid no more. I am grateful to your Lordships for the consideration and understanding which has been shown as regards this Bill.
§ On Question, Bill passed, and returned to the Commons with amendments.