§ 3.32 p.m.
The Minister of State, Home Office (Earl Ferrers)
My Lords, I beg to move that this Bill be now read a second time.
The Bill represents the first major change in official secrets legislation since 1920. It is a notable reform and one which considerably narrows the scope of the criminal law. It is right, therefore, that the House should look carefully at its provisions. I have no doubt your Lordships will consider that the time for reform is long overdue, and I hope you will agree that this Bill provides the right balance between material
1606 which must continue to be protected by official secrets legislation and the many other areas where such legislation need no longer be invoked.
There have been two main developments since your Lordships debated the White Paper on the reform of Section 2 in July. The first is the changes which we have made to the Bill itself, in the light of the comments which were made on the White Paper, including those expressed by your Lordships. We have introduced a test of harm for the unauthorised disclosure of the confidences of other governments and of international organisations. We have sharpened the international relations harm test so that it applies clearly to the protection of this country's interests abroad. We have narrowed the offence relating to the disclosure of information which results, or is likely to result, in crime. We have clarified the reference to interception so that it protects only information which is authorised under a statutory warrant.
The second main development since your Lordships last debated official secrets is the introduction of the Security Service Bill, to which your Lordships gave a Second Reading last week. The placing of the security service on a statutory basis, the warrant provision to which I have referred, the provision for a commissioner to review the exercise of the Secretary of State's warrant powers and the provision of a tribunal to which aggrieved people can take complaints are all important developments and safeguards which the House will no doubt wish to take into account when considering the Bill.
It may be of assistance if I set out the general shape and outline of the Bill which is before your Lordships today. Clauses 1 to 4 set out the six categories of information which are to be protected by the Bill. They create offences relating to the disclosure of such information by Crown servants or government contractors, and, under Clause 1, by notified persons.
There are specific tests of harm which are relevant to the type of information which is protected by each of the first three clauses of the Bill. They are security or intelligence; defence; international relations; and foreign confidences. There are also clear harm tests which are inherent in the description of the crime category in Clause 4 of the Bill. There is no separate test of harm in the sixth category for the disclosure of information about, or information which is obtained by, activities under statutory warrant.
These are essential instruments for protecting the security and well-being of the country. Their effectiveness depends on secrecy, and any unauthorised disclosure must therefore reduce that effectiveness. In those circumstances, we think it right to ask your Lordships to agree that, in this narrow, defined and statutorily controlled area of activity any unauthorised disclosure is bound to be harmful.
For similar reasons, in relation to security or intelligence matters, we propose that the test of harm should not apply to disclosures by members of the security and intelligence services or by people who are notified that they share the same liability.
Clause 5 deals with unauthorised disclosures of official information by people who are not Crown
1607 servants or government contractors. It works by applying Clauses 1 to 4 to those disclosures. It makes it an offence for a person to disclose information in the six areas which are protected by Clauses 1 to 4, provided of course that any test of harm is proved and provided that the prosecution can prove that the discloser had good reason to know or to believe what it was that he was doing. Clause 5 does not apply where official information is first disclosed outside the jurisdiction of our courts.
Clause 6 makes an exception to that provision. It applies where information which relates to security or intelligence, to defence or to international relations is communicated in confidence by this country to another state or international organisation. The effect is that that information continues to be protected by the Bill if it is leaked abroad and if it is subsequently disclosed without authority but within the jurisdiction of our courts.
The remaining clauses make provision for related offences, for provisions relating to prosecutions, penalties and criminal processes, and they deal with definitions, interpretation and extent.
Perhaps I may refer to three particular points which I know have exercised some of those who contributed to the consideration of the Bill in another place, and to which I have no doubt some of your Lordships will wish to return. They relate to the offence in Clause 1 for members of the security and intelligence services and notified people; to proposals for separate public interest defences; and to proposals for a defence of prior publication.
I wish to take first the special offence relating to security or intelligence. The Government have considered very carefully the proposal in the Bill that members of the security and intelligence services, and those who are notified because of their work with those services, should continue to be subject to the criminal law for any unauthorised disclosures which they make about the work of the services, without having to pass a separate test of harm.
We believe that all disclosures of that nature are harmful. We think it is essential to expect that those who are entrusted with the most sensitive secrets of the country should respect that trust. When they do not do so, the breach of that trust damages the probity of the services in which they are involved, which probity is essential if the services are to work effectively.
This is fundamental to the nation's security. My noble and learned friend the Lord Chancellor reminded your Lordships last week, in the context of the Security Service Bill, that secrecy was at the heart of security. We cannot get away from that. Nor is there anything wrong in that. Nor is there anything wrong in admitting that. So we must make sure, in our endeavour to be open-minded, that we do not create a hole in the heart of the nation's security.
I know that some noble Lords are concerned that this requirement, which we consider to be vital, could mean that any concerns which members of the services may have about their work were swept under the carpet. That is not so. That is why the
1608 Government have already put provisions in place, following a report of the Security Commission, to deal with that concern in a careful and effective way.
Since November 1987, there has been a staff counsellor for the security and intelligence services to whom any member, or indeed a former member, of the services may turn if he has anxieties about his work and which he has been unable to resolve through management in the normal way. The staff counsellor has not himself been a member of the services, and he can report on any matter, if he judges it necessary, directly to the Prime Minister or to the relevant Secretary of State. Reinforced as they have been by this appointment, we do not believe that members of the services need—or, indeed, should be able—to make unauthorised disclosures about their work outside the essential barrier of secrecy within which the services must operate.
I do not believe that Parliament, through this Bill, should give any encouragement to the view that those sorts of breaches of trust are either reasonable or desirable. That is why we believe that the law in this comparatively small area must remain very much as it is today.
Your Lordships will no doubt wish to consider an alternative—but broader—way in which some have suggested that an unauthorised disclosure could be justified in circumstances which are not covered by the specific provisions of this Bill. It lies in what has come to be called the "public interest" defence. I am not sure whether those proposals have the effect of building a flyover across the offences in the Bill or of driving a coach and horses through them. Either way we are convinced that such a defence is not workable in this legislation. Nor do we believe that it is necessary.
I have no doubt that we shall return to these matters in more detail. Today I should like to point out two items. The first is to make it quite clear to your Lordships that those who propose a public interest defence are seeking a new provision—one which has not before existed in the Official Secrets Acts. I know that there are those who have sought to argue that the 1911 Act provides some such defence, but that argument has never been sustained in any court ruling. Every relevant court ruling has come to the opposite conclusion. We are looking, therefore, at a new provision and a new defence.
The second item is to ask your Lordships to recognise the true nature of this proposal. It is to allow the categories and the tests in the Bill to be set aside by a separate series of defences which are unrelated to either the categories or to the tests. The proposal, in effect, says that, even though the harm which is identified in the Bill has indeed been caused, there is some differently perceived and wider interest which means, in effect, that the harm does not matter.
The consequences of this kind of argument are these. It means that the damage to the essential concerns which this Bill seeks to protect in the interests of us all will have been done. The lawyers can later sort out the arguments, and the court can seek to decide who is to blame; but the damage will have been done.
1609 The noble Lord, Lord Annan, is not in his place today. He has given us the privilege on two recent occasions of being reminded of most of the contents of Troilus and Cressida in a manner—dare I say it—of which the noble Lord, Lord Olivier, might have been envious. I would be slow to be drawn into competition with the noble Lord. But when the secrets have been divulged, whatever the reason, I would remind your Lordships of the anguished but apt words of Lady Macbeth:What's done cannot be undone".That is the truth of the matter when we encourage, or appear to encourage, disclosures which could do great damage to the nation's interests as described in the Bill. The result of such proposals would be to create a criminal law which is so weak and so uncertain as to call in question whether it is possible to have an effective criminal law in this area at all.
We are not talking about competing or balancing interests, as under the civil law, which can be considered before any damage is done. We are talking about the proper protection of the nation's secrets and what should be the predictable consequence of betraying those secrets.
I suggest that there are better ways of raising—and indeed of investigating—concerns without making damaging betrayals. For these reasons we see no safe or necessary place for a general public interest defence in this Bill. Nor do we believe
was harm done by that particular disclosure?
Against what I hope your Lordships will agree is a reasonable, clear and fair operation of the proposals in the Bill, those who advocate an absolute defence of prior publication must argue that there can be no circumstances whatever in which a subsequent publication can ever cause the harm against that for which the Bill seeks to provide the necessary protection. It would be a brave and perhaps even a reckless person who could make that kind of assumption.
One would have to assume not just that every hostile foreign government must always know everything which was ever published, in any form, in this country or abroad, in any of the protected categories in this Bill. One would also have to assume that, for example, all terrorist organisations are similarly equipped. I do not believe that that can be so. This defence is not necessary to ensure that those who harmlessly repeat information, which is already widely available, need not be in any fear of the proposals in the Bill. Not only in that respect is this defence unnecessary. I believe that it is an immensely damaging proposal which I hope that your Lordships will see fit to resist.
I have no doubt that we shall return to these matters at later stages of the Bill. Today we look at
1610 the principles embodied within it. They are that we must take this opportunity to reform Section 2. It has, I believe, done this country little credit, and it has militated against the nation's interests that we have left it for so long. I ask your Lordships to agree, too, that it is right that the Bill should seek to protect the six categories of information which I have described and that, in the great majority of areas, there should be specific tests of harm which the prosecution will have to prove. It is right in principle that the decision on guilt or innocence should be left to the jury, with no provision for ministerial intervention.
I believe that the Bill strikes the right balance between that which must be protected effectively by the criminal law on official secrets and that which does not require such protection. It strikes a fair balance between the interests of the country as a whole, and the responsibilities as well as the liberties of the individual. It strikes a proper balance between what should be defended under official secrets legislation and what need not be and should not be. It is in that spirit that I commend the Bill to your Lordships. I beg to move.
§ Moved, That the Bill be now react a second time.—(Earl Ferrers.)
§ 3.50 p.m.
§ Lord Mishcon
My Lords, the House will be grateful to the noble Earl for his lucid exposition of the Bill. I should like to say at the outset that all the combined wisdom of your Lordships' House will be needed in the treatment that we give to the Bill. If ever a Bill justified the existence of a reviewing Chamber it is this Official Secrets Bill.
It may be useful to concentrate for a moment on the history of the matter. The original Act of 1911 was passed in Parliament one afternoon in an atmosphere of some panic. The all-enveloping, all-confounding and all-nonsensical Section 2 was not even debated. Since then everyone who has looked at the problems created by official secrets has said that Section 2 must go. One must be fair about the matter. All governments of whatever complexion shied at trying to deal with the matter, or they put forward alternatives which were not acceptable. Therefore, no one comes to a consideration of this Bill shrouded in white; the colour is slightly grey.
One observes with a certain amount of appreciation that at least a Bill has now been presented to Parliament which we can debate. However, if they are empty debates which do not take into account the vital principles involved, then Parliament will not have done its duty in respect of democratic government, our constitution and otherwise.
Perhaps noble Lords will agree that it is a good idea to concentrate on the principle which will guide us in consideration of the Bill at all its stages. I do not believe that we can do better than follow the noble Lord, Lord Franks, whose report many noble Lords will remember. It dealt specifically with Section 2 of the 1911 Act. At its commencement he stated:from the earliest times governments of all types have been anxious to preserve secrecy for matters affecting the safety or tactical 1611 advantage of the State. It is, however, the concern of democratic governments to see that information is widely diffused, for this enables citizens to play a part in controlling their common affairs. There is an inevitable tension between the democratic requirement of openness, and the continuing need to keep some matters secret".It is that tantalising balance that Parliament must exercise in considering what shall be secret and unavailable to the public and the media and what shall not.
From the start I cannot help regretting the state of our statute book in this context. We are considering matters about which the public must not be informed. Those who break that confidence are guilty of a criminal offence. Yet we do not have any right enshrined in statute which tells the public what, as a matter of law, they are entitled to obtain by way of information.
It would have been a happy event if, together with the Security Service Bill and the Official Secrets Bill, we had been told that in the parliamentary programme there would be an Information Bill enabling the public to have rights in regard to information. That is a thought with which I hope the House will agree.
In introducing the Bill the noble Earl, with his usual foresight, believed that there were matters which would be debated in your Lordships' House as they were in the other place. With great adroitness he put his finger upon those matters and dealt with them perfectly fairly from the Government's present point of view. I say from the "present point of view" because I hope that the Government will not shut their ears to the voices which may be heard in your Lordships' House in regard to these vital matters. I should like to make abundantly clear the fact that in debates in another place, and those in this House on the White Paper, it was on no party line that the voices were heard. From all sides in another place and in this House the view was expressed that, with the national interest so much at heart, party loyalties in the narrow sense were irrelevant.
The noble Earl dealt with the question of public interest and quite rightly said that it was pertinent to a debate on the Bill. He chose his words carefully and said that the question of public interest had not been clearly stated in any legislation dealing with official secrets.
From that point of view he was right, although he gave too narrow an interpretation in regard to the old much-maligned—and correctly so—Section 2. In the Ponting case which was brought under Section 2 the learned judge endeavoured to tell the jury that the question of national interest was for the Government to decide and it was unable to decide or to take that matter into consideration. One of the lessons which we should learn when considering the Bill is that when juries believe that the law is completely contrary to their sense of justice and common sense it will not be taken seriously by them. Even in the face of the learned judge's summing-up on the law a jury will find contrary to what he expects.
The law certainly knows something about public interest but it is the civil law. I should like to quote from what was said by the noble and learned Lord,
1612 Lord Goff of Chieveley, when sitting judicially in your Lordships' House in the Spycatcher case. He said:It is incumbent upon the Crown in order to restrain disclosure of Government secrets, not only to show that the information is confidential, but also to show that it is in the public interest that it should not be published…although in the case of private citizens there is a public interest that confidential information should as such be protected, in the case of Government secrets, the mere fact of confidentiality does not alone support such a conclusion, because in a free society there is a continuing public interest that the workings of Government should be open to scrutiny and criticism".I cannot think of a more elegant description of public interest or of the need to consider public interest in protecting government secrets.
When the noble Earl addressed us, I imagine that he was thinking in terms of the danger which might be created by civil servants divulging secrets and coming forward with a plea of public interest when there was absolutely no need to do so. There was no need, first, because the matters were not serious enough. However, the harm would have been done and there would have been the publication, of which complaint was made. Secondly, there is machinery available to deal with those matters.
I believe that I would correctly interpret what is in your Lordships' minds if I say that all those safeguards could very easily be put into this Bill, as indeed the honourable Member, Mr. Shepherd, on the government side endeavoured to do in the other place. One could have the safeguard that all the channels had been used by the civil servant, but unfortunately ineffectively, and that any matter which could be published must come within categories of either fraud or serious misconduct of some kind at the instance of government.
If we do not have that and we have no freedom of information Bill, and if, heaven forbid, there was a Watergate or an Irangate case in the United Kingdom, then those matters could never come to light. As I think back, as your Lordships will, sitting in this House in safety I wonder whether that safety would have been the same and whether we should be debating matters in the way in which we are today if it were not for Winston Churchill and people like him. The voices of Winston Churchill and the civil servant who gave him the vital information which led to some strengthening of our national security—because we were told of its weakness—would not be voices in the wilderness but voices confined to a prison cell if a Bill such as this had gone through without that protection.
That is not the only provision in the Bill at which we shall have to look. Again, the noble Earl was quite right in his forecast. He said that there would be discussions on previous publications. I wonder whether it would not be suitable for us to remember what another of our colleagues, the noble and learned Lord, Lord Griffiths, said in your Lordships' House quite recently, sitting judicially:Having established that Peter Wright remains bound by his duty of confidence, the Attorney General then submits that any third party who receives the confidential information, knowing of his breach of confidence, is likewise bound by the same duty not to disclose the contents of Spvcatcher. The Attorney General therefore submits that despite the fact that Spvcatcher has received worldwide publication and is in fact available in this country for anyone who wants to read 1613 it, the law forbids the press, the media and indeed anyone else from publishing or commenting on any part of it, saving only that which has already been referred to in the judgments of the courts. If such was the law then the law would indeed be an ass, for it would seek to deny to our own citizens the right to be informed of matters which are freely available throughout the rest of the world".That was a civil case but if in civil law the law is an ass, in criminal law the law will be a laughing hyena if we allow any Bill of this kind to go through without the proper protection of saying, "You do not commit a crime if you are publishing something which has already been published".
I could go on to talk about other matters which are obviously to be dealt with in the remaining stages of this Bill. I could give absurd examples of what this Bill would lead to in regard possibly to nearly everyone in your Lordships' House sitting in this Chamber today. I could talk about the lack of definition of harm and other provisions in the Bill which make our law uncertain instead of certain. I believe that I can best conclude as I began by saying that your Lordships have in your power in this Bill to do something which preserves our democratic way of life and which prevents us from falling into the trap of believing that all that government do, they do for the best. I can only repeat that your Lordships' wisdom, tolerance and respect for our democratic traditions will be called for by the nation in the consideration of this Bill.
§ 4.7 p.m.
§ Lord Jenkins of Hillhead
My Lords, I believe that it is indisputable that this country has one of the most secretive traditions and systems of government to be found anywhere in the democratic world. I do not believe that that results in a greater degree of efficiency or even immunity from spy and disclosure scandals in this country than in others. However, clearly the responsibility for that tradition and practice does not rest entirely with the present administration. It was built up over many years. It began with the 1889 Act, which was carried by a Conservative Administration, and then came the ill-considered 1911 Act, which was of course by a Liberal Administration in the Asquithian heyday. None of the five Labour Governments who held office up to 1979 carried through any effective amending legislation.
As I was Home Secretary for at least part of the time in two out of those five Labour Governments, I must obviously take some part of the responsibility for that. Therefore, I begin with a few words of reflective explanation. In the mid-1960s I do not believe that I seriously applied myself to the official secrets issue although my Home Office administration in those years is not normally criticised for lack of liberalising zeal—rather the reverse. However, one could not do everything and the issue was not then on the boil.
However, in the mid-1970s, the Franks Committee having reported, I had both a commitment and a desire to become rid of the indefensible Section 2 and greatly to narrow the area of restriction. I also paid a special visit to the United States to study the working of the then fairly new American Freedom of Information Act. I was a little worried by the 1614 potential expense but not by any other aspect of it. I then took my proposals to my Cabinet colleagues. If, after 14 years, I am not risking imprisonment under Mr. Hurd's liberalising measure I can tell your Lordships—and perhaps give Mr. Hurd's a crumb of non-partisan comfort—that the welcome I received was far from unanimous.
There were certain powerful departments where secrecy had become a way of life and where the Secretaries of State in charge of them, though powerful in Cabinet, did not (how shall I put it?) allow their reforming enthusiasm to lift them above their department ethos. I found the war of resistance sufficiently strong that I decided—and there may be a lesson for Mr. Hurd here—that any measure which emerged might actually make things worse and not better. In particular, I feared for the replacement of the rusty old blunderbuss of Section 2 of the 1911 Act, which, although it looked fearsome, was too cumbersome and inaccurate to be at all frequently used. I feared that its replacement by some new armoury of sharp-shooting weapons which would nonetheless splay too wide might be damaging.
Therefore, I decided to apply what I thank is a good old Conservative principle, though it is one that is not much in vogue today: that if you cannot be fairly confident that you will improve matters and not make them worse, it is better to leave them as they are. I withdrew. It was not noble; but then the principles of Conservatism, at least since the great Halifax, the trimmer, rarely are noble, but they can often be sensible.
In my view, Mr. Hurd has not been sensible; nor, I fear, has he been wholly frank. Whether out of weakness or myopia, he has brought forward a Bill which owes too much to obsessive resentment at the outcome of the Spycatcher and Ponting cases and has gone on with an increasingly pathetic lack of conviction trying to proclaim that he is presenting a great liberalising measure.
On the first point I cannot now, looking back with the calmness of hindsight, recollect a saga comparable with the Spycatcher case, where a government persistently and collectively so completely lost their sense of proportion. On the second point, surely it is now obvious that the Home Secretary has failed to carry any significant body of informed or independent opinion with him.
In the House of Commons we have had the spectacle of the Government being unsupported in debate except by the Home Secretary and his junior Minister, who as often as not were contradicting each other. Of course, there has been a guillotine which was much protested against by prominent Conservatives. However, what seems to me to be still more objectionable in a measure of this sort, going to the roots of the balance of the relationship between the individual and the state, is not so much the Government's impatience with extended debate as their unwillingness to take any notice of the arguments deployed, whether the debates be long or short. Only a single, one-word, obscure amendment has been accepted. The others have been crushed by the unlistening, uninformed, unconcerned majority. It has been a performance in the House of Commons 1615 which must make the noble Lord, Lord Denham, green with envy.
If this is not an elective dictatorship, I do not know what is. Eleven years ago I was much taken by the use by the noble and learned Lord, Lord Hailsham, of that mind-moving phrase. I entirely understand why the noble and learned Lord cannot be here this afternoon. He is having yet another well-deserved honour conferred upon him. He explained to me that his absence is unavoidable but that he will welcome reading what I have to say.
In 1977 the noble and learned Lord was of course warning against an elective dictatorship of the Left. I am sure that he is not so bounded by partisanship that he can only see an argument from one side of the hill. We are very close today to exactly the circumstances which he was warning us against; a government with a big majority in the House of Commons, though well short of a majority of the votes cast in the country; an exceptionally centralised system of decision-making in the Government; a measure which has no mandate behind it and which has been appallingly mauled in arguments both inside and outside Parliament where the only real props are the will of the Prime Minister and the discipline of the Whips. We could say the same, on a minor scale, of the Football Spectators Bill where even the pretence that the Minister has to answer arguments has been tacitly abandoned. I fear that we are about to see much the same on a subject which is close to the heart of the noble and learned Lord, Lord Hailsham—the independence of the Bar.
We are very close to exactly the position which the noble and learned Lord was warning against 11 years ago. In the circumstances, I am sure he does not think that the threat is rendered innocuous by the fact that it now comes from the Right and not the Left. Surely your Lordships' House should not be inhibited from pressing well-argued and well-supported amendments to the Bill, which I believe will be deployed.
At least three main amendments seem to be necessary. First, there is the public interest defence. It is the only real protection against erecting a theory of the state which justifies the carrying out, if they are given, of the most monstrous orders. I thought that that theory was disposed of at the Nuremberg trials, at which the noble and learned Lord, Lord Elwyn-Jones, began his great politico-legal career. Secondly, reasonable regard at least must be given to prior publication, if only to prevent this and future British governments making world laughing stocks of themselves. Thirdly, the absolute life-long obligation of complete confidentiality is too blanket a restriction. It cannot be enforced, as I suppose in strict theory it should be, against politicians who have held one of two Secretaryships of State, or the Prime Ministership. If they are de facto excluded, as in practice they must be, the whole measure becomes a piece of discriminating hypocrisy.
This is not a good Bill. It could, however, be improved by substantial amendment. If it is not, it will stand out discreditably as restrictive legislation masquerading under the guise of liberalisation, as a
1616 partisan approach on a subject where cross-party agreement is manifestly called for, and as legislating with a taste for punishment which is positively unhealthy with an almost deliberate intention of running head-on into the European Court of Human Rights.
§ 4.20 p.m.
§ Lord Hunt of Tanworth
My Lords, when we debated the White Paper last July, I welcomed the general approach but argued that the blanket protection for information provided in confidence by foreign governments and other international organisations was too sweeping. Therefore, I am glad that the Bill includes a test of damage. I wish today to return solely to the question of a public interest defence or what I have called the "Robin Hood argument"—that it is all right to do wrong provided good comes of it. Many people are worried about the absence of this defence, and I have thought a good deal more about it.
The Bill provides that prosecutions will need the consent of the Attorney-General who as a law officer must consider whether it is in the public interest for a prosecution to be brought in a particular case. To go further than that and to provide specifically for a public interest defence seems to be open to a number of very real difficulties. It would be very difficult to define; it would greatly increase the risk of damaging disclosures being argued over ex post facto on different interpretations and different arguments about where the public interest lay. Above all I believe that it would be inconsistent with what should be the fundamental starting point.
In a moment I shall come to what I accept are exceptions when the fundamental principle cannot apply. The fundamental principle is that Ministers are accountable to Parliament and that civil servants are responsible to Ministers. I believe that anything that was perceived, even if not intended, as a general departure from that fundamental principle would not only be constitutionally incorrect; it would be a recipe for politicising the Civil Service. If civil servants are to be given two loyalties, Ministers would understandably wish to have as their close advisers people on whose political loyalty they could depend.
The noble Lord, Lord Croham, unfortunately cannot be here this afternoon. On a different occasion he said that those who advocate an ethical duty on civil servants to inform on Ministers while remaining in their posts have almost certainly not realised how intolerable that would be to civil servants and Ministers alike. The question is how to deal with the exceptional case where the general principle breaks down. If we are honest, I believe the first matter is to recognise that we are talking about the exceptional case. It is for Ministers and not civil servants to defend and to gain support for their policies and to decide how to do that. It is for Ministers to present their own arguments. Provided the civil servant has given the best possible and honest advice that he can, it is not normally right for him to go around saying, "But the Minister has left out one point which will be to his disadvantage".
1617 If a civil servant is so personally committted that he seeks to frustrate government policy, then he really should be in a different profession. Again, what about the wholly exceptional case (each one gets more exceptional) where the civil servant not only feels, "I cannot stomach this"—in which case it should normally lead to a request for a transfer to other work—but where he also feels that what is going on is so legally or ethically improper and so wrong that in conscience he must do something about it. As has been said, there are procedures for this. The individual concerned has the right of access first to the head of his department and then on appeal to the head of the Civil Service. In the case of the security and intelligence services he has also the right of access to the staff counsellor.
This should deal with what is already by definition an exceptional matter unless one assumes that the senior authorities consulted or appealed to are either part of the same conspiracy with the Minister or are too pusillanimous to do anything about the responsibility that they now bear themselves, the matter having been reported to them. To get to the situation where a public interest defence might be genuinely needed, we have to assume not only the exceptional case where a civil servant is justified in undermining his Minister but also instances where the established procedures—in some cases put formally into place only recently and hardly given a fair trial—have not worked
That is an ascending series of unlikelinesses. But let us suppose it all happens. I believe then that the civil servant must act according to his own conscience. I believe that if the conscience is a strong one and properly informed and the civil servant is not playing politics but really acting in a way that he believes he has to, it is very difficult to believe, whether or not there is a public interest defence, that a successful prosecution could be brought.
I have deliberately spoken from a narrow standpoint and that of a former civil servant. I believe that the introduction of an overriding but ill-defined public interest defence would not be in the interests of a bipartisan Civil Service and, by blurring loyalties, would send the wrong signals to it. I would say this with less confidence if harm was to be defined, as it was going to be on an earlier occasion, by ministerial certificate that could not be challenged. But now, in almost every case in the Bill, damage is defined and the decision on damage is left to the jury. Against that background I still believe that there is no reason to provide for a public interest defence.
§ 4.27 p.m.
Lord Home of the Hirsel
My Lords, I will come to the question of the exceptional case that has just been mentioned to your Lordships by the noble Lord, Lord Hunt, in a very few minutes. But I wish to begin, as the other three speakers at the beginning of this debate began, with the matter of principle involved. We are debating the Second Reading of this Bill against a background of years of public and parliamentary clamour that there should be much less secrecy and much less use of the criminal law in that context.
1618 I confess that I have not been surprised that successive governments have been cautious on this issue. The dilemma is real. The security of the nation is the first duty of any government. The question is how to authorise the release of that information to which an educated and involved public may reasonably feel to be entitled while denying to the listening and probing potential enemy the knowledge that would help it to subvert our constitution and institutions and to undermine our defences. It has taken many years to come forward with a Bill that attempts to do that.
I have had some years of experience of the intensity of those who aim to destabilise our society and of the skill, vigilance and professionalism needed by our security services to counter them. That is a very difficult business that Parliament has to decide in the context of this Bill. I would never join the clamour for the repeal of Section 2 of the existing Act until I could be reasonably satisfied that the areas of undisclosable official information could be more precisely defined to protect essential secrets so that those who deal in the dissemination of information know plainly where they stand under the law. The Bill comes much nearer to that position than anything that has gone before.
I welcome the greater precision with which the six areas that are to remain subject to criminal sanctions are defined. Within those areas I like, too, the test of harm in which the intention to damage the interests of the nation has to be proved against the defendant. Both those provisions are important and good. I confess that I have some misgivings at times in this highly specialised and twilight area of activity as to the ability of the jury to assess the national interest. However, I believe that, on balance, it is preferable to the Executive being the judge in its own cause. I find it possible therefore to vote for that part of the Bill.
There can be no doubt that the all-embracing formula of the national interest had become discredited in the public mind. I am more particularly glad to see that included in the six areas is information gained in confidence from foreign governments. That is an especially sensitive and delicate field of international relations. Looking back over the past 20 years, if leaking had been as prevalent and fashionable then as it has become lately, we would not have succeeded in our negotiations with the United States over the Polaris submarine or with the test ban treaty with the Soviet Union. The price of deliberate leaking of official information can be exceptionally and unacceptably high. I believe that we ought when considering these matters to keep that in mind.
I welcome too the fact that the Bill is preceded by the Security Service Bill. It is of great importance, as we have to have a secret service, that morale in MI5 and MI6 should remain high. The provision of a staff counsellor for the members of those two services is good and will contribute towards a more contented service than we have had in the past.
There is one matter on which I hope my noble friend the Minister can help me and the House. It has already been touched on by a number of speakers. It relates to whether a member of the secret services or a civil servant who desires to write a book or perhaps 1619 to write his memoirs should be able in certain circumstances to do so. After some years I confess that I am a little rusty on the rules governing matters in this twilight area. However, if I remember correctly, this used to be possible provided that the writer availed himself of the consultation processes devised by the departments and by the Cabinet Office in Whitehall. They provided for consultation at various levels of authority up to the permanent secretary in the department, and if necessary to the Secretaries of State, with the Prime Minister in reserve.
I think I can properly illustrate my meaning by reference to one example with which some noble Lords will be acquainted. The late Sir John Masterman, a most distinguished citizen, was during the war a Crown servant in the secret service. He wished to publish a book which he appropriately named Double Cross. In it he gave an account of how our secret service confounded the plans of its German opposite number until in the last year or so of the war the German secret service was virtually working for us. It was a most enthralling story. The question was raised whether the publication of such secret matters was against the public interest.
The book went through, with Sir John's consent, all the departmental hoops, right up to the permanent secretaries of the two departments—the Foreign Office and the Home Office. It eventually arrived with the Secretaries of State, one of whom happened to be me. At the time we took the book to the Home Secretary who had the main authority in this matter. Between us we authorised publication. I read the debate on this matter in another place and it left me confused. Can my noble friend tell me whether when the Bill becomes an Act such facilities through the departments will be available to servants of the Crown? I hope so because it seems to me to be a sensible procedure and also has about the right degree of flexibility. If my noble friend can answer that question today, well and good. I am certainly happy to support the Bill.
§ 4.36 p.m.
§ Lord Houghton of Sowerby
My Lords, I certainly wish to endorse the compliment which my noble friend Lord Mishcon paid to the Government on their courage in tackling this difficult and controversial subject. Many governments have said that they would do something about the redundancy of the Official Secrets Act but none of them managed to achieve anything in that area. Whether a government are courageous or foolhardy, at least an attempt to tackle the question is to be commended.
My interest in confidentiality over the years has been in the Inland Revenue. I would not seek to change the conventions and the rules regarding confidentiality which Inland Revenue officials are required to observe in the affairs of taxpayers. However, the Bill removes the power of the Inland Revenue to prosecute its own staff who may be guilty of serious delinquency in disclosure of taxpayers' affairs. At present it has the disciplinary remedy and in the worst cases it can prosecute and pursue a
1620 criminal charge. Will something be done to restore to the Inland Revenue its power under Section 2 of the Official Secrets Act in order that it is not deprived of the ultimate right to go to court in serious cases?
I understand that this will be put right by a clause in the forthcoming Finance Bill which will restore to the Inland Revenue especially the powers taken away from it in Clause 2. That is right and I have not heard so far of any serious objection to it. I do not speak in a representative capacity but my long experience over 40 years with the Inland Revenue enables me to say that the present system has worked very well and there is no reason why it should not be fully retained in its existing condition.
Perhaps I may say in passing that the record of the Inland Revenue for confidentiality on taxpayers' affairs is remarkably good. When one considers the different ranks, classes, regions and personalities of the thousands of staff of the Inland Revenue who have access to the files and records of individual taxpayers it is remarkable that so little complaint has ever arisen about disclosure. When I was on the Royal Commission on Standards of Conduct in Public Life, however, I encountered serious differences of opinion regarding the duty of tax gatherers who discovered in the course of their work serious fraud or crime, not only in relation to people's tax affairs but crimes and frauds which were committed incidental to the affairs of taxpayers.
For example, I cite a simple case of a transport firm which might claim commissions payable in its accounts. The tax inspector says, "What are they; to whom are they paid and what for?" The accountant, or the taxpayer, then demurs on disclosing the object of those commissions. Of course the person concerned can be threatened with the disallowance of a dubious item in the accounts as a deduction from taxable profit. But where, in those circumstances, a taxpayer discloses that they are in fact commissions paid to the chairman of the transport committee of the city council as a condition of getting contracts,, what does the tax inspector do?
There are two views on the matter. One is that the tax inspector should go straight to the police. But that is not what he should do now; his duty is to transfer his responsibility to the board of the Inland Revenue. The commissioners of the Inland Revenue have by statute law and letters patent the care and management of the Income Tax Acts and they assume full responsibility for what occurs in the course of the investigations conducted on their behalf. It is the duty of the Inland Revenue to decide what shall be done.
Let us suppose that the tax inspector in this hypothetical case waits for some indication of what the board of the Inland Revenue is going to do. However, he hears nothing about any prosecution; he thinks that it is dreadful scandal and his conscience will not allow him to sleep at night until he has made some disclosure to the press, the police, or whatever. That is the dilemma. I believe the rule is that the commissioners of the Inland Revenue have taken the responsibility off the shoulders of the tax inspector and he is relieved of all further responsibility. Moreover, his conscience is clear when that is done. 1621 After all, he should not carry alone, and on his own initiative, the whole and ultimate responsibility for everything that goes on around him. There are others whose duty it is to assume that responsibility.
That is the kind of dilemma which can arise. One view can be that in those circumstances the inspector should have gone straight to the police; it was his duty. It was not a tax crime; it was a fraud in respect of the local authority. It was a crime of itself. Even so, I think that one must let the buck stop somewhere, and if it stops at the Inland Revenue that is where it rests. It is not for individual members of staff to try to carry the matter further.
I can tell noble Lords this. More of the truth about taxpayers' affairs comes out because there is more confidence in the reliability of the Inland Revenue staff to keep their mouths shut than there would be if there was the fear that disclosure of people's tax affairs might be freely made. How far would the Inland Revenue get if it had to place on the desk of every Inland Revenue official a notice warning: "You are not bound to make any statement, but if you do it may be taken down and used in evidence against you"? How many accountants would keep their seats in the face of such a warning and go on candidly with their disclosure of taxpayers' affairs?
I think that what the Inland Revenue does at present is undoubtedly in the public interest. I have taken the view that where a citizen is obliged by law to disclose certain matters relating to himself, he is entitled to rely on that information being used only for the purpose for which the law requires it be given, unless Parliament decides otherwise. That means that the Inland Revenue is not free to make disclosures to other departments, or anyone else, of information received in the course of its work—unless the law provides for that to be done.
It is done now where exchange of communications between Customs and Excise and the Departments of Health and of Social Security, on VAT and other matters, takes place. But, again, there are some very intimate secrets of individuals resting in the hands of civil servants. What would happen if the Department of Health or the Department of Social Security discovered that an insured person had committed bigamy? Is it the department's duty to go to the police, or what? If we feared that that might happen, far fewer of us would commit bigamy, and that might not be a good thing. In my view there is something to be said for bigamy. Nevertheless, I think that the system works very well.
There were, however, serious difficulties about this matter in the Royal Commission, but I shall leave that now because I think that the Inland Revenue should be left alone to deal with its little interest in the Bill by a change in the Finance Act when it comes into being.
I turn now to the speech made by the noble Lord, Lord Hunt of Tanworth, regarding the public interest defence. Here I completely agree with what he said. Indeed, I wrote to The Times to say so when a little body of former permanent secretaries wrote to that newspaper on the subject. There is only one question: should there be a final repository for the consciences 1622 of troubled civil servants who cannot abide what they know, unless something is done about it or can they go to someone who will accept responsibility in the matter?
The letter sent to The Times by the former permanent secretaries drew attention to the fact that in the case of financial matters there is a long stop, so to speak, in that a civil servant can go to the Comptroller and Auditor General. I have been asked many times about what would happen if the Inland Revenue, for instance, received a direction from the Treasury—which the Income Tax Acts say that it must comply with—which it felt was a corrupt instruction from that department possibly to discharge all the tax liabilities of the Chancellor of the Exchequer. What would it do with it? I have received different replies from different chairmen of the Inland Revenue over the years. However, they mostly amounted to this: "We might be slothful in giving effect to it, we might go straight to the Comptroller and Auditor General and tell him, or we might comply and go to the Comptroller and Auditor General". At all events, they could go to an officer who has a duty to Parliament and would have his remedy in that way.
I was once called to India to advise on the dilemma of a permanent secretary to the Ministry of Finance. He had drafted a reply to a question in the Lok Sabha (the lower House of the Indian Congress) on behalf of the Minister of Finance. The Minister of Finance so altered the reply as to give an answer in the Lok Sabha which was almost a complete untruth. That was more than the Permanent Secretary could stomach. We have heard already about the stomach from the noble Lord, Lord Hunt of Tanworth. There are, no doubt, a great many stomachs about which cannot stand something or other. A lot of them are probably in the Civil Service.
There was a difficulty. I advised the Permanent Secretary to go to the Prime Minister. He went to the Prime Minister who immediately set up a judicial inquiry which found that the Minister of Finance had behaved wrongly. He resigned. However, the Permanent Secretary found the environment thereafter so chilling in the presence of other Ministers that he decided to accept a much more lucrative appointment in the field of insurance. That is how that matter was dealt with in India. One cannot be sure of what would happen in the British Civil Service if a civil servant exercised his right to go to a Minister.
So far as finance is concerend, the path is clear. In non-financial policy matters—and here I have in mind the Ponting case—what is to happen? The Bill does not provide for, and nor do I believe that there is any satisfactory provision for, a civil servant in that position to take his worries to higher authority and leave them there. That is something we should consider. I have thought of the Head of the Civil Service having a statutory authority; I have thought of a board of referees. Three wise men are not unknown in the Civil Service. They judge the loyalties of individuals which may be questioned by their department. There may be some point of reference to which a civil servant could take his worries.
1623 I was then asked, "What if the complaint is about the Prime Minister? What do you do then?" The buck has to stop somewhere. It has to stop with those democratically elected to carry the ultimate responsibility for public administration. If there were a separate board of referees, its advice would at least be available. It might even have its own remedy of reporting to Parliament if it though it necessary to do so.
I endorse the withdrawal of the public interest defence from civil servants in those circumstances. To contest that one must go to great lengths of theoretical and hypothetical possibilities to find the type of case that would not be taken care of in that way. As the noble Lord, Lord Hunt, said it is difficult to define the public interest. Attempts were made in a Bill introduced by a Back-Bench Member of the other place to define the public interest which should comprehensively protect the civil servant who might avail himself of it. One goes then from the specific to the general and adds "or other misconduct". When you have defined all you can think of you then say, "or other misconduct". It is not a satisfactory definition of what is in the public interest.
We should not seriously contest what the Government propose to do in that regard; but in the non-financial area we should consider giving the type of point of reference which is available to civil servants in a case of financial administration.
§ Lord Callaghan of Cardiff
My Lords, before my noble friend sits down perhaps he will allow me to say that I take it that we are to assume that his reference to seeing something in bigamy is a purely theoretical concept in view of the fact that he and Lady Houghton will be celebrating their Golden Wedding next Saturday. I congratulate them both.
§ Lord Houghton of Sowerby
My Lords, I rely upon my noble friend to acquit me of any personal involvement in bigamy.
§ 4.55 p.m.
§ Lord Thorneycroft
My Lords, I endorse the good wishes that the noble Lord, Lord Callaghan, expressed to the noble Lord, Lord Houghton. I agree with what the noble Lord, Lord Mishcon, said—that this is a subject which has strained the ingenuity of all parties and of all governments. That point was well illustrated in the speech of the noble Lord, Lord Jenkins of Hillhead, who described his difficulties in achieving a solution of his own, no doubt an ingenious one, through a Labour Cabinet. We sympathise with him. We had the advantage of being able to see the smiles on the face of the noble Lord, Lord Callaghan, as he described his efforts in that direction.
It is a difficult subject. I agree with the noble Lord, Lord Houghton, that this is at any rate a brave Bill. It is bold to attempt it. The noble Lord, Lord Mishcon, said the same. Here we at least have 1624 proposals which are not being debated round the corner. They are out in the open for your Lordships' House to discuss. It is a brave and a sensible Bill which deserves a Second Reading.
I shall follow other speakers and say a word or two about the boundaries of the debate. There is one view which says that anything that comes to the knowledge of a servant of the Crown in the course of his duties should be private to him. He has learnt it through his duties. He should not hand it on except with due authority. That view, so to speak, has been wisely or unwisely reinforced by linking it to the criminal law, first, I believe in 1898 and then more forcefully in 1911, on an August day when, for some reason which I have not been able to discover, the whole business was pushed through as though it were a matter of little importance which would not alter things much. Section 2 was passed almost on the nod. In retrospect, the one or two spokesmen who protested deserve our congratulations upon their foresight.
I wish to talk about the boundaries. There is the secrecy view. There is another view—a view which the noble Lord, Lord Mishcon, put with great eloquence—that in a free, democratic society it is necessary that knowledge should be widespread; that the public interest is often best served by spreading that knowledge widely; and if anyone believes that the public should know about such things, he should be able to defend his actions by pleading that view. Both those views are untenable. The truth must be found somewhere between them.
I want first to say a little more about the view of secrecy. That is the theme with which I, perhaps because of my age, was brought up. I served in government departments where conversations between Ministers and civil servants were absolutely confidential. The thought never crossed one's mind that what one was saying to one's permanent secretary would be handed on to someone else. May I say that it operates the other way round. Permanent secretaries have said some very funny things to me in my life, but I would not dream of handing on in public what I recollect they said.
The debt that those of us who have been Ministers owe to civil servants is enormous. The ability to discuss incredibly difficult subjects with people of impartiality and intelligence—not partisan; not party minded—who are willing to advise members of whatever party is there is an inestimable boon to public life. I agree with the noble Lord, Lord Hunt, and I think we should remember the norm here. The norm is that that confidentiality is, and should be, respected. It was reinforced by these Acts of Parliament, but it is perfectly clear that the Acts of Parliament as they stand today cannot be sustained and have to be altered. Juries simply cannot be brought to convict in many of the cases that are brought forward.
There is of course the other side of the leaf. When I think of the sort of open government side, I think of Dick Crossman. Many of your Lordships knew Dick Crossman. I knew him very well. He was a friend of mine. Clem Attlee would never have him in a Labour Government, really because he thought of 1625 him as he was, a journalist, rather than a politician. I used to do a television programme with him and with Malcolm Muggeridge. Malcolm and I used to go up in the train to Manchester writing Dick's script so that what he said was just to the left of me when we got in front of the cameras, which we thought was important to his career. I found him the most intelligent and lovable man.
Whatever the enormities of what he was doing, his political diaries have made an immense contribution for anybody who wants to know anything about politics. They ought to be compulsory reading for any student of politics, whether you agree with them or not.
§ Lord Callaghan of Cardiff
My Lords, will the noble Lord give way? I only wanted to ask whether they were to be read as a serious contribution to history or as a work of fiction.
§ Lord Thorneycroft
My Lords, they should be read. They should undoubtedly be read. Let us face it, Dick Crossman's view of security was a bit different.
§ Lord Ardwick
My Lords, will the noble Lord give way again? It was not Dick Crossman, the journalist, of whom people were a bit suspicious. It was Dick Crossman as a political don, and it was as a political don that he wrote up his diaries as a kind of sequel to Bagehot.
§ Lord Thorneycroft
My Lords, maybe, but he used to seize me in the corridors of this House and say, "Peter, you have no conception what they got up to in Cabinet this morning". There is no reason why one should not reveal this. I do not say it against him. I loved the man. However, it is a different approach to public life.
I do not think that we can have a world in which on the one hand, you send everybody to prison if they give information on what has come to their knowledge in public affairs or, on the other, there is quite such an open view as I have described. You have to find some situation in between the two. Therefore, I hope I carry the House with me in saying reject these extremes and look for something in between them.
I agree that is difficult, and I am not going to make a long speech or even go into as much detail about these clauses as some noble Lords have done. But if you are going to look for something in between these two positions you have to answer some of the questions that this Bill asks and seeks to answer. You have to decide which areas you want to protect. The Government have decided here to leave out of the area of protection vast wads of what goes on in government.
I do not have the information that the noble Lord, Lord Houghton, has as to what the Treasury does. I do not know whether a criminal offence has been committed by communicating to the noble Lord, the future contents of the Finance Bill. But as the law would stand under this Bill, Treasury officials would not be prosecuted. I do not say that they should be. I share the noble Lord's view of the moral duty of a
1626 civil servant in the Treasury; it is confidentiality. It would be chaos if every edition of the Budget was leaked in advance. If a man really felt that he had to go on leaking various editions of the Budget, he would be better advised to do something else: look after salmonella in eggs, the privatisation of water or any of the other delights that governments can always find for officers of this character.
§ Lord Houghton of Sowerby
My Lords, I am grateful to the noble Lord. I can set his mind at rest. The information I gave about the contents of the Finance Bill to come have already been announced publicly to the staff of the Inland Revenue.
§ Lord Thorneycroft
My Lords, that is the good defence of earlier publication, which I absolutely accept from the noble Lord. I would find it a bit astonishing if, having gone through all this trouble with the Bill, the Treasury managed to put back a criminal offence into the Finance Bill, but it may be able to do so. However, this would be a Committee point.
Under the Bill, there are great areas, which would include finance, the social services, health, education, many areas of government, policy documents and the rest, where I hope the confidentiality habit would be, and remain, the norm—and in that I think I carry the whole House with me because governments would find it difficult to carry on if it was not the norm—but where no prosecution would lie if they were in fact published.
If you are going to find somewhere between these extremes you have to select some areas that you think are of importance. The Government have selected those areas and set them out. At Committee stage it is perfectly possible to argue that they are the right ones, that they are the wrong ones, that some ought to be left out or that some ought to be added: but those are Committee points that can he debated at the proper time. My point is that they have adopted the right technique in answering the question of which areas therefore they wish to protect.
The second question they have to be asked is: "Do you mean that everything in those areas is going to be subject to prosecution?" They say "No"—and I think rightly—"only if actual harm can be produced". I think that the House would, on the whole, probably agree with that decision.
The third and last point that they have to answer is who should be the judge of this. It is either a Minister or a jury. There may be difficulties about that. Here I agree with the noble Lord, Lord Home of the Hirsel. I believe that the jury is the right answer, as he does. Therefore, they have answered those questions.
If noble Lords think that there is some other middle position, they are perfectly entitled to say so. No doubt many of them will when we reach Committee stage. The principle that one should reject the extreme views and seek for some solution along these lines seems to be the right one. I therefore commend the Second Reading of the Bill to the House.
§ 5.10 p.m.
§ Lord Zuckerman
My Lords, against the background of the profound speeches with which this debate has been introduced and after those endearing references by the noble Lord, Lord Thorneycroft, to Dick Crossman I am happy to say that I served the noble Lord, Lord Thorneycroft, in previous years under the old Official Secrets Act, I trust satisfactorily, and would do so again under any Official Secrets Act. My own contribution will be somewhat narrow.
The reason that I put my name down to speak is to get one point clear. In a letter to The Times on 7th March the chairman of the British International Studies Association said that the Bill as drafted will,threaten the numerous relationships of trust that the research community"—a term which I do not quite understand—has built up with numerous civil servants over the years in order to help them".If that is the case, I should like to know what would be the position of ex-civil servants such as myself and retired leaders of the armed services—I do not see any present—who had taken part in controversial discussions leading to particular items of government policy and who subsequently kept themselves informed about those matters. Would they be able to take part in debates about those issues when, because of their prior knowledge and experience, they felt properly qualified to speak?
Lord Campbell of Croy
My Lords, I apologise for interrupting the noble Lord. I wonder whether he has seen the letter in today's issue of The Times signed by Mrs. Chalker, Minister of State at the Foreign Office, which certainly partly tries to answer the question.
§ Lord Zuckerman
My Lords, no, unfortunately I have not. If the Minister has provided a satisfactory answer, no doubt the noble Lord the Leader of the House in winding up the debate will refer to the matter.
I should like to give a specific example of what I have in mind. It is an example that some Members of the House will recognise because they were concerned with it. It relates to a programme to improve or modify the warhead of the Polaris missile. I can talk about it today because a few years ago there was a lengthy television programme in which the civil servants who were concerned took part. I imagine that that was done with the authority of the Minister concerned or under the authority of a Permanent Secretary or the Secretary of the Cabinet. I do not know whether my noble friend Lord Hunt was the Secretary for the Cabinet at the time, but he certainly knows about the affair.
When the story began in 1966, Mr. Healey was the Secretary of State for Defence. He agreed that certain studies should be made at, for those days, a trivial cost—a few tens of millions of pounds. I believe that members of the Cabinet at the time were not entirely convinced that it was a good idea. When Mr. Heath's government followed—I know this because it all came out in a television programme—he was not convinced. He allowed the programme to go ahead 1628 only on the basis that reports on progress were made every three months or so.
The story ends with the government of which the noble Lord, Lord Callaghan of Cardiff, was Prime Minister. By then the project had cost more than £1 billion. It is on public record now that the then Foreign Secretary, Dr. David Owen, considered it a waste of money but thought that he could not stop it because so much had already been spent on it, a view that has also been publicly stated by Mr. Healey who had by then become Chancellor of the Exchequer.
I would not be able to refer to this matter in your Lordships' House had the television programme not gone out, coupled with the fact that various Ministers in their memoirs have referred to it. The main objection to the project was that the United States and the USSR were then locked in the negotiations which were to result in the 1972 anti-ballistic missile treaty. I ceased to be a civil servant in 1971 and when the treaty was concluded I had become a Member of your Lordships' House. Would I have become guilty under this Bill of a criminal offence had I referred to the story at that time, and if I had admitted giving as my view to Ministers of successive governments that it did not make the slightest difference to the United Kingdom's status as a deterrent power to expend that money on the project? Would I, I ask, have been guilty of a criminal offence had I spoken on the subject after the 1972 treaty had been concluded, say in 1975 or 1976, in the way that I am doing now? Obviously it is not a story that I would have told at any time when I was an active civil servant.
§ Lord Callaghan of Cardiff
My Lords, I cannot give the noble Lord the answer to his question. It is not for me to do so. However, it would not have prevented him going to the Prime Minister of the day, who took office in 1976, and giving him his views then, would it?
§ Lord Zuckerman
My Lords, I do not know whether I would now be in breach of the Official Secrets Act if I were to say that I may have done so. Perhaps, when the 30 year-rule is up, the noble Lord, Lord Callaghan, can refer to the papers and see what the situation was.
§ Lord Callaghan of Cardiff
My Lords, I do not want to pursue this matter too much. However, I must say, in view of the references that have been made, that my understanding was that Mr. Heath's government had carried this matter on. By the time I attained the office that I was very proud to hold, so much had been committed that I was told, as one usually is, that it would be more wasteful to stop it than to continue it. So it went on. I am sure other noble Lords have had that experience in other areas.
§ Lord Zuckerman
My Lords, when I became the chief scientific adviser to the Ministry of Defence, Mr. Harold Macmillan—later to become the Earl of Stockton—then the Prime Minister, gave me some advice about these matters. He said, "Kill the projects when they are small fry. They are more difficult to stop when they become sprats and impossible when they are herrings".
§ Lord Mishcon
My Lords, I hope the noble Lord will forgive me if I ask the Minister to tell me, either now or subsequently, whether I am committing a criminal offence by listening to this speech.
§ Lord Zuckerman
My Lords, I shall now lead up to my final point. Given the letter in The Times, to which there is an answer in today's edition of The Times, which I have not read, will the Bill as it now stands in some way reduce the extent to which the government of the day might benefit—I say might, not would—from the widening of debate on controversial defence issues, as the letter to which I have referred implies?
§ 5.21 p.m.
§ Lord Hutchinson of Lullington
My Lords, it is with some trepidation that I rise to take part in this debate, as certainly six of the previous speakers have held high office in government. One thing has become perfectly clear: that is, that the lifelong obligation for confidentiality must already have been broken many times during the past half-hour. Therefore, I am somewhat encouraged by that in the views that I wish to express about this Bill.
I also wish to join in congratulations to the Government for at least having cleared away and killed off Section 2 and got rid of a mass of dead wood. I suppose one must forgive the Government too for a mass of propaganda and a little misinformation which has been put out about this replacement Bill. But two things are quite clear: first, that this will be our last chance for many a long year to get this controversial and vitally important legislation right; and, secondly, that this Bill is in no way a liberalising measure.
Section 2 has become a dead letter because it threw, and was meant at its inception to throw, a blanket of potential criminality across the whole Civil Service. It established a tradition of secrecy in governmental operations which became an obsession to which my noble friend Lord Jenkins has already referred. Its brooding presence has smothered the operations of the Executive in a fog of half truths and concealment.
Although the Bill with one benevolent hand clears away much of this smog, with the other rather more malevolent hand it introduces even greater restrictions in the six areas to which we have already referred. If I may say so, that is a Home Office technique with which we have become familiar in this House. The House should appreciate that over the past 30 years all prosecutions involving leaks to the media have been within the six areas covered by the Bill.
Franks recommended the replacement of Section 2 by an official information Bill. What we have here is of course a resolutely Official Secrets Bill. Since 1972, there has been a revolution in information technology. Satellites survey and transmit to the whole world. As Mr. Gorbachev himself has recognised, information can no longer be kept from people. In mature democracies people demand their freedom and their civil rights and the information which makes the exercise of those rights possible.
1630 As the noble and learned Lord, Lord Scarman, has said:The law must recognise and enforce the right to receive as well as the right to impart information".That is a proposition recognised and made effective in the United States, in much of the Commonwealth and in many European democracies. But in this Bill there is no recognition of that at all. It does nothing to reduce the secret nature of our system of government. It does not make one piece of official information more available to the citizen. Indeed, the White Paper warns us:Ministers will continue to determine what information should be disclosed and to account to Parliament for those decisions".In other words, there will be a perpetuation into the 21st century of the paternalistic state of the 19th century. Surely in a protection of official secrets Bill the principle must be to forbid what is seriously harmful and to free what is not. Franks said that harmful meantthat which causes serious injury to the interests of the nation".If the Government had accepted that simple criterion in this Bill, they would have placed this country, in this respect, alongside the other great democracies of the world. But instead what have the Government done? In Clause 1 and Clause 4, as we have already heard, they create absolute criminal offences—blanket offences that prohibit for all time the disclosure of anything relating to the two intelligence services. It matters not whether the disclosure is harmless, trivial or stale or whether it discloses crime, fraud, iniquity, negligence or incompetence. It enshrines for ever the concept of absolute Trappist confidentiality.
Lord Home of the Hirsel
My Lords, is not damage to the nation exactly what has to be proved by the prosecution before the jury?
§ Lord Hutchinson of Lullington
My Lords, with great respect, that is not the case in that part of Clause 1 with which I am dealing, where there is no question of a jury ever having any duty to decide anything. In the Spycatcher saga, which of course is the main cause for this Bill, the judges of this country, applying the common law, have utterly rejected this oppressive claim by the Government. That claim was made when the Government sought to suppress and silence press and publisher alike, by resort to the civil law of confidence.
The noble and learned Lord, Lord Griffiths, has already been quoted. I quote him again. He stated:In this litigation there are no absolutes".I ask the House to pay regard to the words of Mr. Justice Scott when he said:A balance must be struck between the freedom of the press and security. The extent of the duty of confidence depends on the relative weight of the needs of national security and the public interest that the information should be disclosed".Later, he continued:The press has a legitimate role in disclosing scandals in government. The ability of the press freely to do so is one of the bulwarks of our democratic society".It is to the common law, not to this Bill as it now stands, that we must look once again for the 1631 maintenance of our fundamental rights and freedoms.
If it is unjustifiable to apply civil sanctions in an absolute way, is it not even worse to seek to do so with criminal sanctions where the liberty of the subject is at stake, as the noble Lord, Lord Mishcon, has already observed? Can we in this House support clauses in a Bill that establish that nothing the secret service does should ever become public knowledge? Will there not always be a lifelong possibility that the interests of government and the public interest may not coincide?
In opening this debate the noble Earl said that the public interest defence would not be workable. I suggest to the House that this blanket suppression, if left in the Bill, will prove unworkable. It will he a charter for leaks and deceit, but truth will not for ever be suppressed. Indeed, as Edmund Burke declared:Bad laws are the worst sort of tyranny".The House should remember that in this Bill we are dealing with offences carrying a maximum of two years' imprisonment on indictment; that is, at the lower end of indictable crime. It is Section 1 of the 1911 Act, which remains in force, which deals with offences at the higher end—espionage and entering prohibited places. To establish an offence under Section 1 the prosecution must prove that what was done was:for any purpose prejudicial to the safety or interests of the State".That is, in the really serious area of official secrets the law demands proof of a purpose, one that is prejudicial to the safety or interests of the state: in other words, a public interest requirement.
Yet here, dealing with far less serious offences, it is proposed that the law should require no purpose to be proved, no harm to the safety of the state and no defence to be allowed. That seems hardly credible. Of course the most sensitive secrets of the state must be covered and secured, but surely some relaxation of that absolute ban must be possible. As the noble Lord, Lord Thorneycroft, said, there must be something in between.
I suggest that a proper, sensible and just defence must be provided in these clauses of the Bill. Of course internal procedures should be followed by civil servants and the security of the nation must be preserved. But I should like to remind the noble Lord, Lord Hunt, that public interest was involved in the 1889 Official Secrets Act. It was possible to spell it out in the old Section 2 of the 1911 Act, whatever the noble Earl may have said in opening the debate.
It was relied on successfully in the Ponting case and it was relied on, as I know so well because I relied upon it myself, in the Sunday Telegraph case. The words, communicating toa person to whom it is in the interest of the State his dutyto do so may not have been blessed by some decision in the higher courts, but I think I am right in saying that those words have never been dealt with in the Court of Appeal at any time. The result of this Bill is that those words have been swept away and there is now no public interest element in the Bill. I sincerely hope that the House will agree to put it back.
1632 It is welcome that the Government have abandoned the idea of ministerial certificates and have brought in the jury to try the issue of harm. But what is that issue? It will not be serious injury to the interests of the nation; it will not be public interest. It will be damage to the work of any part of the services; damage to the capability of any part of the armed forces to carry out their task; jeopardising the interests of the United Kingdom abroad. Those are weak, inexact and unreliable issues, far removed from the central question of the security of the state.
I ask the Minister to explain more fully the role of the jury in those cases. If the defence say, "Yes, we agree that there was slight damage to the ability of the army stores department to carry out its task but we considered it essential to disclose the massive corruption involved in the purchase of the stores", would the jury be allowed to weigh the damage to the army's ability to carry out its duties against the damage to the reputation of the army and the necessity to disclose the corruption? I do not understand what it is that the jury will have to decide in such cases.
In the matter of international relations in which UK interests abroad are jeopardised, the defence may say, "Yes, the interests of this country are jeopardised by the disclosure because the disclosure shows that the person concerned in the contract for a big armaments deal was involved in corruption. Nothing could be worse for our relations with another country than that". Is the jury which tries such a case to decide on the one hand that the disclosure has jeopardised our relations with that other country but on the other that the reason was a corrupt contract and therefore the contract fell through? I ask the Minister to clarify that question. It is very important that we should understand it before we reach the Committee stage.
Finally, I suggest that the real mischief of the loose elements of those defences is the threat involved which will hang like a sword of Damocles over the heads of civil servants and, under Clauses 5 and 6, over the heads of all those in the media. We shall be back to the mischief of Section 2—uncertainty. Will disclosure be damaging as defined? Will disclosure be likely to jeopardise our interests abroad? No editor will be able to tell, no civil servant will be able to be sure. This much vaunted trial by jury begins to look like a new threat to the freedom of the press and something of a confidence trick.
In another place there were many appeals to this House to set right the mischiefs in this Bill. I sincerely hope that your Lordships will so alter the Bill as to make it one worthy of this country and a Bill that looks forward to the 21st century and not back to the last.
§ 5.39 p.m.
§ Lord Renton
My Lords, much of what the noble Lord, Lord Hutchinson of Lullington, said will be the subject of discussion in Committee. I dare say that, like me, many noble Lords were surprised to hear him say that the Bill is not a liberalising measure. It clearly is a liberalising measure because it does away with the catch-all provisions of Section 2 of the 1911 Act and 1633 replaces them, so far as prosecution is concerned, with the six clearly defined categories in the Bill. The Government surely deserve to be congratulated upon the introduction of the Bill. It undoubtedly brings the law into the realm of reality and enables the publication of a vast range of government information which was previously forbidden. I dare say that the media will find that they have never had it so good.
In my opinion the Government have gone as far as they reasonably could in allowing freedom of information. It is arguable that they have gone too far. For example—this point is clear from the speeches of my noble friend Lord Thorneycroft and the noble Lord, Lord Houghton of Sowerby—it appears that, apart from the tradition of confidentiality between civil servants and Ministers, there will no longer be Budget secrets. Even the leaking of a draft Budget Statement will be beyond the scope of the Bill and not subject to prosecution.
We benefit in the Chamber during this debate from the presence of three former Chancellors of the Exchequer and two former Chief Secretaries. I wonder how they feel about the proposition of no more Budget secrets. One remembers a Chancellor of the Exchequer who, alas, resigned because, as he walked towards the Chamber of another place to deliver his Budget Statement, he casually mentioned to a journalist something that was to be in that Budget Statement. Honourably, he resigned.
Does the liberality of the Bill mean in effect that that ancient and valuable restraint is to vanish? I hope not. However, as the Bill stands it looks as though it will. A rather absurd situation arises because to do away with the secrecy of the Budget could lead to undesirable speculation which the secrecy—by common consent, a necessary constitutional tradition—has always been there to prevent. The Government should think about that point.
I doubt also the wisdom of allowing Cabinet minutes to be freely disclosed unless they concern the six matters mentioned regarding security and so on. Of course, if Cabinet minutes dealing with those matters are disclosed, they will be the subject of prosecution, but there must surely be some protection of confidentiality for discussions in Cabinet and its committees. If there is no confidentiality it is bound to inhibit freedom of discussion. That goes without saying. Freedom of discussion is essential to enable a consensus among Ministers to be found. Ministerial decisions should have the widest support inside the government, but they may not do so if confidentiality is not protected.
There is another strange result. All members of every Cabinet and a number of senior members of every government are Privy Counsellors who take an oath of secrecy by which they are bound. It would become a mockery if their discussions were to lose their confidentiality through the publication of Cabinet papers. I therefore most seriously suggest that the Bill needs to be strengthened with regard to the disclosure of Cabinet minutes and papers, ministerial correspondence and especially matters relating to the preparation of the Budget. Even if the 1634 Bill were to be strengthened in those ways, the media would be in a far freer and better position than ever previously. They would still have plenty to write about. The heresy hunters would still have their fun. Even if the Bill were to be strenghtened a little, as I suggest, they would know exactly where they stood.
I do not in any sense criticise the Bill by mentioning my next point. It is inevitable that juries will sometimes have some quite difficult questions of interpretation to decide. The words "possession" in Clause 1(1) "jeopardises" in Clause 2(2)(b) and "damaging" in Clause 1(3) will give rise to a great deal of argument in the courts. And, on the evidence, it may be rather difficult for juries to come to a decision. I mentioned that point not to criticise the Bill, but in the hope that—if anyone ever reads this debate and my speech—the courts will realise that they have to give juries plenty of guidance. There is a tradition in the law that if a prima facie case has not been established on any particular question of fact the judge does not require the jury to decide that question. The safeguard of the judges having that responsibility is worth bearing in mind when considering how the Bill will work in practice in the courts.
The Government have done well to introduce the Bill. I strongly support the measure even though it could reasonably do more to protect the confidentiality of some state secrets. I hope that that will be done.
§ 5.47 p.m.
§ Lord Hatch of Lusby
My Lords, it has already been noted, particularly by my noble friend Lord Mishcon and the noble Lord, Lord Hutchinson of Lullington, that the debate is in effect about the tension between freedom and security, and liberty and order, but surely the only justification for security and order is to protect and defend freedom and liberty. I admit that, in our society, apathy and indifference, characterised by the constantly used phrase, "I'm not interested in politics" is of more danger to democracy than is authoritarianism—the concept of "them" and "us". I contend that the Bill increases those elements that are debilitating to a democratic society.
The Government have started from the wrong premise. I follow the noble Lord, Lord Hutchinson, on that point. In order to foster a rich, deeply rooted and participating democracy, citizens need information. They need to know what is being done in their name. Above all, they need to know what is being done by those in authority who have executive power, except of course where it is absolutely necessary to withhold that information for the protection of the democratic society itself. I wish to echo what the noble Lord, Lord Hutchinson, mentioned; namely, that the Franks report put this much better than in the Bill.
The noble Earl who opened the debate spoke of the test of harm. That is a very vague phrase; it is even vaguer when accompanied by the word "likely". In the Bill we see that there are many loose phrases of that kind which are dangerous. The noble Earl took to task those of us who have been pressing for the 1635 retention of the defence of public interest. He said that all disclosures of that nature were harmful. He then went on to suggest that those who used the element of public interest for their actions were suggesting that harm did not matter. I submit that he was wrong. The issue is not whether harm does not matter. As the noble Lord, Lord Hutchinson, has pointed out, the issue is whether more good to society comes from whatever it may be—a leak or a revelation—than harm.
Harm is not an absolute; but in this Bill harm becomes an absolute. However much good may result from a revelation, if the Government consider that there is the slightest element of harm then they condemn that revelation. I should much prefer the test of harm to be left with juries rather than be decided by Ministers.
If we are to foster our democratic society, if we are to get greater participation by citizens in the political process at local and national level, the supply of information and the right to know are of paramount importance. I am not alone in thinking that. I wish to offer noble Lords a quotation which I think that the noble Lords on the other side of the House would be wise to accept. The quotation is as follows:Publicity is … the most effective check against any arbitrary action … the paramount function of this distinguished House is to safeguard civil liberties rather than to think that administrative convenience should take first place".—[Official Report, Commons, 5/2/60; cols. 1351 and 1357–58.]That quotation was given by the lady who was then the honourable Member for Finchley, but who is now the right honourable Lady the Prime Minister. It is not often that I agree with the right honourable Lady; on this occasion I do.
When we were debating the White Paper on 29th July last year, the noble Earl, Lord Ferrers, was challenged by my noble friend Lord Mishcon to answer the question as to what would have been the position under the terms of that White Paper of the gentleman who supplied Sir Winston Churchill with information about the defence forces before Sir Winston was in government. The noble Earl refused to answer on these grounds. He said:I have no intention of giving an immediate answer, and for one good reason which the noble Lord will understand perfectly well. That is, whether or not they were guilty of a criminal offence would depend on what the law states. We do not yet have the new law; all we have are proposals which may be turned into law. One cannot possibly answer a question like that without knowing the details of the new law".—[Official Report, 29/7/88; col. 560.]That excuse has now gone. We have the specific proposals in a Bill so I think I am entitled to ask the noble Lord who will wind up to answer the questions that I asked the noble Earl when we were debating the White Paper. They may be historical but they are precedents. We are entitled to know what would be the position of these historical incidents under the terms of the Bill.
What would be the position of Clive Ponting if the Bill becomes law? Would that trial ever have taken place? Or would it have been the Government who decided that he was guilty without any opportunity for a jury to hear the case? What would have been the position of Sarah Tisdall under the terms of the Bill? 1636 Would there have been a trial or would the Government have taken action themselves?
What would have been the position of Cathy Massiter? Would she have been sent to trial or would the Government have acted on their own? What would have been the position in the Westland case? What would have been the position of those officials who, we are told, leaked the vital letters? What would have been the position of the then Secretary of State for Trade and Industry? What would have been the position of the Prime Minister? What would have been the position of the law officers of the Crown? I understand that Mr. Mogg and Colette Bowe have now deposited their papers in security boxes. Why? If their accounts of what took place coincide with those of Ministers, why should they have to secrete the papers that were vital on a matter of national interest at the time? We have never been told the full story. What would have happened under the terms of this Bill?
What would have happened to the film "Zircon" and the magazine, the New Statesman or any other magazine that wrote about the affair? Would they have been banned under the Bill? I do not know whether noble Lords have seen the new film "Scandal". I hope that they saw the Channel 4 programme on the film the Sunday before its premier. At the end of the Channel 4 film the statement was made that MI5 had denied that Stephen Ward was one of their agents, when the noble and learned Lord, Lord Denning, was conducting his investigation. According to the programme on Channel 4 much later MI5 admitted that that was not the truth. I do not know. Is that the case? If it is so then is it not also true that that could not have been done under the Bill? The top officers of MI5 would never have been allowed to admit that they had not told the truth at the review.
The national interest is served by the freest supply of information. Citizens have the right to know. It is then their responsibility to use the information that they are given. They have the right to know—to know what is being done in their name by their elected representatives, by the Civil Service and by Members of this House. Only that right to know will preserve our democratic system. If any noble Lord doubts that we have only to think back to the examples of pre-war Germany and Italy to recognise the dangers of the withholding of information. Above all, Ministers' and governments' reputations are often served by the suppression of the truth. That is not a strength to democracy.
My fear is—and I am not alone in this, because Members on the other side of the House are concerned—that the Bill will put back the worst features of Section 2 of the Official Secrets Act with greater force and by so doing will increase the secrecy of government and will weaken the cause of our democratic society.
§ 6.2 p.m.
My Lords, I join those who have congratulated the Government on having found the courage to tackle one of the most complicated and difficult areas of necessary law reform. Unlike their 1637 predecessors they have looked at this seriously and have produced a Bill that demands our very careful consideration. Unlike some noble Lords opposite, I cannot agree that the Bill is in no way a liberalising measure. There are certain areas where it liberalises and reforms in an extremely positive way. The most important area is the removal of an oppressive punishment for disclosure of information which falls outside the six categories mentioned in the Bill. From now on anyone who improperly reveals or discloses any such information will not be subject to punishment under the criminal law.
However, I am sorry that my noble friend Lord Renton is not in his place because I wanted to refer to what he said about budget secrets and others. The provisions do not mean that any civil servant or Minister who discloses such matters would go unpunished. Hugh Dalton was severely punished for his indiscretion. Under this Bill or under no Bill any civil servant who reveals budget secrets or secrets about the environment, health or driving licences is subject to the sanction of the ruination of his career and to the sanctions of his superiors. I suggest that this is an extremely heavy instrument which can be used effectively. The reform therefore is in the removal of criminal penalties for these areas outside.
I am also very pleased to note that the Government did not go down the path of the ministerial fiat—the idea that the Government and the Government alone should determine what is or is not damaging to the national interest. It is much more sensible and in keeping with British justice—even the noble Lord, Lord Hatch of Lusby, made this point—to leave that question to the 12 good people, and true, of a British jury. I have no doubt that a jury will consider very carefully any case that is brought before it and will use normal common sense in deciding whether the interest of the state has been damaged by an unauthorised disclosure. The noble Lord, Lord Hutchinson, spent some time on this point. He asked whether a jury would take into account other matters. For example, the national interest may have been damaged in one respect, but in another respect it may have benefited from disclosure. Will the jury take that into account? I dare say that my noble friend Lord Belstead will not be able to answer that because he cannot speak for how juries may interpret the Bill in the future.
§ Lord Hatch of Lusby
My Lords, before the noble Lord leaves this point, will he address himself to the fact that in the Bill there are six designated areas which are absolute crimes and will not therefore be subject to jury decision on any question of public interest?
§ Lord Bethell
My Lords, with the greatest respect to the noble Lord, these areas provide scope for a jury decision because in each case, with the exception of matters of security and intelligence, a jury will have to decide whether damage has been done to the national interest. I believe that juries will take into account all the facts that are put before them in such a case. In the example of stores which was raised by the noble Lord, Lord Hutchinson, it will be perfectly 1638 in order for counsel for the defence to say that there perhaps has been damage to a keeper of stores, but there has been benefit to the national interest through the disclosure and the revelation of corruption in that area. If counsel makes the case well and convinces the jury, his client will be acquitted of the charge.
It makes a lot of sense for this matter to be kept reasonably vague in the Bill so that the jury has the utmost scope in deciding the matter. After all, what would we prefer? Would we want the Bill to spell out in the closest detail what is or is not damaging? Should it be left to a Minister to decide what is damaging? Certainly not; it should be for a jury to decide what is damaging and in this respect I see the positive points of the Bill.
I shall therefore support the Bill in general. However I hope that the Government will be willing to accept an amendment to Clause 1(1), which deals with the vexed question of the lifelong duty of confidentiality. I am referring to the paragraph which states that it is an absolute offence for any member of the services or anyone who has been notified in the appropriate way to reveal any information relating to security or intelligence.
I accept that we must have secret services and that these services must remain secret. I accept too that almost always it would be wrong for facts about operational or policy matters in the services to be made public by people who are associated with them, at least for many years. However, I can envisage circumstances when it would be not only proper for, but indeed the duty of, such a person as mentioned in the subsection, to disclose facts which were of deep concern to him or her.
Members of the services are not demigods. They are human and capable of making mistakes. They are even capable of committing crimes. As a student of Eastern Europe I have what I hope is a healthy caution towards any accumulation of extra power by security and intelligence services. I do not suggest that we in this country have to any extent approached the improper activity of the secret services in Eastern European countries. However, we cannot guarantee that that will never happen in the future. We cannot guarantee that in the future there will not be an oppressive government which will authorise and instruct secret services to commit crimes against citizens.
The secret services are the guardians of the state, but how are they to be guarded? I suggest only by a vigilant Parliament and press. However, Parliament and the press will be helpless in such a matter without the ultimate safeguard of the officer authorised to reveal information. If, having gone through every possible recourse—through the staff counsellor, his superiors and, if necessary, Ministers—he received no satisfaction and found that wrong-doing continued, he should then be entitled to make the facts known.
I do not imagine that happening today, this year or next year, but to say that it should never happen is a mistake. Therefore, I respectfully disagree with my noble friend Lord Ferrers in saying ghat all non-authorised disclosures are harmful. One can envisage 1639 a circumstance in which disclosure would not be harmful and would be the fulfilment of the officer's higher duty to the Crown and the law. In such circumstances the law should protect that person.
I should like to turn to the less intense area of history. I ask the Government not for amendment but for clarification. We know how the matter was debated in another place. The question of the memoirs of secret service officers was put forward most notably by my right honourable friend Mr. Amery. Noble Lords will be aware of the hundreds of books that have been written on the basis of the disclosures of secret service officers mainly involved in the Second World War. I must declare my interest in that I have written books on such subjects.
There has been a certain amount of confusion among Ministers in another place about how and under what circumstances such disclosures or memoirs should be authorised. In a letter sent to me last autumn the Home Secretary wrote that damage to the national security would be the only criterion and that authority could be granted when it was possible to be satisfied that no damage to national security would result. Mr. Hurd also said that with the passage of time it will be increasingly possible for the officers to obtain such authority.
However, a few days ago in a debate in another place he said that such authorisation would be given only rarely and under exceptional circumstances. I am not sure that that is a total contradiction but I believe that the Government should try to clarify the position, if not today then in the course of the passage of the Bill.
I must confess that if the blanket prohibition had been in force when I put pen to paper I should have found myself behind bars. For instance, I have discussed with the noble Lord, Lord Charteris, events which took place in 1947 when he was an intelligence officer in Palestine. I have also discussed with my noble friend Lord Jellicoe events which took place in Washington when he was involved in security matters with his then colleague Kim Philby and was concerned with the operation to remove the Government of Albania.
Rightly or wrongly, it is a common practice for former service officers to talk within certain bounds to authors whom they believe to be responsible. If that is to be made illegal and an absolute offence, then at the least the Government should make clear the circumstances under which an officer may disclose information or himself put pen to paper. If not, we shall have great problems and difficulties, not to mention the loss of a tranche of contemporary history.
There are areas in which that loss would be severe. For instance, are we to say that security officers now in Northern Ireland will never be able to write about what has happened over the past 10 years—even in the year 2010 or 2020? I should be sorry if that were the case. I hope that the Government will indicate their willingness to look more flexibly on such an eventuality. The revelations of the crimes of Kim Philby made by the Sunday Times in the 1960s, and 1640 a journalist's interview with him last year shortly before he died, would, under the Bill, be illegal because Mr. Philby was a former intelligence officer. The fact that he broke his vow would make disclosure no less criminal.
If we British officers and historians fail to write about such matters and put forward the case when it is believed that it is not harmful to do so. we may be sure that writers overseas—those among our adversaries in Eastern Europe and Asia—will put forward the anti-British case with great enthusiasm. Are we then to discover that there is no one here able to obtain authorisation to put our side of the case? I believe that it would be wrong to have such a clear-cut, no exception rule about the work of the secret services.
Of course, the work of the service must be protected where it is harmful to the state. However exceptions can be envisaged where it would be thoroughly wrong for the person to keep silent. As regards memoirs, disclosures and contemporary history the Government must make matters clear otherwise, in the phrase of the noble Lord, Lord Acton, "we shall leave our history to our enemies".
§ 6.18 p.m.
§ Lord Greenhill of Harrow
My Lords, it cannot be said too often that an effective Official Secrets Act is an essential part of our national defence. With his unique authority, the noble Lord. Lord Home, made the same point. However, from time to time one hears people claim that we have no secrets now. That phrase was used by a Member of this House during a debate last summer. It is said to be no longer necessary to take such matters seriously.
In one respect that is reassuring because it demonstrates how ill informed are such people of the organisation which the Bill is designed to protect. As many noble Lords know, it plays a vital role in times of tension, particularly in the detection of hostile intentions towards us. All the dangers of the international scene have not yet passed away and it would be a great mistake if we now proceeded on that assumption.
Of course, it was right to try and get rid of the old Section 2 of the 1911 Act. Although at the same time it should be acknowledged that in practice I believe it caused no criminal prosecutions of the trivial matters theoretically covered by it. To replace Section 2, in my view, it is generally better to have an Act which is a blunt instrument and administer it liberally rather than strive to create something perfect. Of course, the revision of Section 2 baffled, as many noble Lords, said, all political parties for many years. However, the present Home Secretary has at last succeeded in tabling what I believe is a workable alternative.
The implication of the Bill now before us has been fiercely debated in the other place and very widely debated by journalists, some of whom seem to be more interested in their own convenience than in the country's security. The White Paper of last summer made many sensible concessions to interested parties, and other concessions have been added since the White Paper was issued. I do not agree with all the concessions; and I must say that I still hanker after 1641 the idea in certain cases of a ministerial certificate, provided it is signed by a Minister and the Lord Chancellor. However, generally speaking, the Secretary of State has stood his ground with determination and has listened with patience and goodwill to arguments, serious and frivolous, which have attempted to deflect him from the main purposes set out in the White Paper.
I do not speak as a former member of the security or intelligence services, but had this Bill been passed into law many years ago, I should have been put under the same obligation of lifetime silence as a member of those services. I see no hardship in that with the qualification to which I shall draw attention in a moment. After all, the medical profession seems able to keep its mouth shut throughout the life of its members.
However, at this stage of the Bill and in advance of the Committee discussions, I should like to make only three points. As I say, I see no objection to the proposal for a lifetime of silence from certain Crown servants on sensitive matters of security and intelligence. Of course, that obligation is qualified by the continuation of the long-established understanding that authorised—and I repeat authorised—disclosure can be made in appropriate circumstances. I believe that the Minister will confirm that that is unchanged by this Bill.
There have been many notable cases in the past when authors have been permitted to write about especially secret material. I am glad that the noble Lord, Lord Home of the Hirsel, mentioned the case of Sir John Masterman. I remember discussing it with him together with the then head of the intelligence services. I do not believe that our discussion was unduly influenced by the fact that Sir John had been tutor to each of us in turn. However, the Home Secretary has indicated that permission to publish will in future seldom be given. Of course, his successors may have a different attitude; but I do not blame him, particularly now, that he does not wish to invite a flood of authors, tempted by extravagant rewards, to try to see what they can get away with.
Mr. Amery in the other place made a more elaborate proposal for the formal arrangements to clear manuscripts. I do not really believe that that is necessary. The way to do that is now clear and not always blocked. The Foreign Secretary may be hesitant about giving permission in the immediate aftermath of this Bill, but it is clear that permission will continue to be given from time to time.
I should like to refer again to the relationship between Mr. Churchill and Mr. Wigram before the war. The noble Lords, Lord Mishcon, Lord Bonham-Carter and Lord Hatch of Lusby, referred to that. The noble Lord, Lord Bonham-Carter, when he mentioned that before, said that Mr. Wigram could not have acted as he did if this Bill was in position. I do not believe that he is right; and I looked up the passage in Sir Winston's book which dealt with that. He said:Mr. Wigram had reached a level in his department which entitled him to express responsible opinions on policy and use a wide discretion in his contacts, official and unofficial".1642 That sounds to me like authorised disclosure, and under this Bill only unauthorised disclosure constitutes an offence.
§ Lord Mishcon
My Lords, I am sure that the noble Lord will forgive me for interrupting since he was kind enough to mention my name. Nowhere in Winston Churchill's memoirs—and I have tried to go through them very carefully—has there been any mention of the fact that his contacts were authorised. If the noble Lord can point to any passage which says that, he is justified in making the point. A description of the seniority of the civil servant. Mr. Wigram, has no bearing on that at all.
§ Lord Greenhill of Harrow
My Lords, I do not agree. He says that his position gave him the discretion to discuss matters of policy with official and unofficial contacts. I do not believe that there is any indication anywhere which I have seen that Mr. Wigram was ever told by his seniors that those contacts were not to be continued.
While it is easy to define when it is damaging to make disclosures in the defence, security and intelligence fields, it is less easy to do so in the field of intelligence relations. The language of Clause 3 now before us is admittedly inexact or imprecise. In this context, it is difficult to devise a form of words more appropriate than "jeopardise" or "seriously obstruct". However, the imprecision of those words may from time to time cause argument. However, the purpose is clear and justifiable and in the course of the Committee stage there may be other wording which the Government find acceptable. Of course, it is in the sphere of international relations that one can expect the majority of authorised disclosures to be made and they take place very frequently; for example, in the news department of the Foreign Office and in the course of discussions with journalists, the BBC and other organisations.
The second point to which the Bill gives great attention is the question of a public interest defence. I really cannot improve on what the noble Lord, Lord Hunt of Tanworth, said on that point. Paragraphs 58 to 61 in the White Paper of last summer which reject that are very cogently argued. It is obviously a nonsense to allow a damaging disclosure, however well motivated, and to argue about its justification afterwards.
Any Crown servant who thinks he should go public on what he claims is serious wrong-doing has the means to argue his case within the government machine. The new staff counsellor for the security and intelligence services provides, as the noble Lord, Lord Hunt, said, new protection. For civil servants outside these services I believe that the difficulties have been exaggerated. Of course, it would need courage but he or she would inevitably have allies and if the object was to right a wrong then the case could be successfully drawn to responsible authority. I find it hard to imagine circumstances in which action would not be taken.
Some senior retired civil servants have suggested yet another kind of ombudsman to whom an appeal could be made in confidence. I was hoping that the noble Lord, Lord Croham, would be here to amplify 1643 what he said, with his colleagues, in his letter to The Times. However, in this country we are fast creating an army of ombudsmen who referee even the most normal administration. As the White Paper says:Any argument on the public interest should take place within the context of the proposed damage tests where they are applicable".My third point concerns the protection of information received from international organisations. Obviously such information must be protected and there can be no argument about that. The problem is to find a sensible definition of "an international organisation". That is attempted in Clause 13 and I shall be interested to hear why that is not adequate.
Finally, the critics of this Bill seem to regard the strict protection of official secrets as something which always conflicts with the national interest. They seem anxious to obstruct the Home Secretary and they are inclined to regard the motives of the authorities—politicians and government servants—as suspect. In my opinion, more often than not it is the motives of the critics which should be treated with caution.
§ 6.32 p.m.
§ Lord Ardwick
My Lords, a noble friend whose name ought to have been on the list of speakers today is not taking part because, as he explained, he could not think of anything new to say. A veteran Front Bencher commented, "That shows he is no politician". I am not sure what he meant—whether a politician can always find a new angle on an old story or whether a real politican takes every opportunity of repeating his case, hoping that in the end he will carry conviction.
Yet I too approach this Second Reading with trepidation. I spoke at length when the noble Lord, Lord Bethel], brought before us his Bill to reform the silly, wicked Section 2 of the Act. I spoke again at length on the White Paper. Since then I have addressed several committee meetings of angry scribes and even, alongside Mr. Shepherd, an international press conference in central Africa. I may say that they were most excited by what they heard.
Of course, we as journalists have a primary interest in this Bill. We are the people to whom official information is leaked without authorisation and we often publish it at our peril. In newspapers, we have more than one function, in a life of great complications. We have to entertain our readers. We have to make money, or stop printing. However, we have to do something more. We have to provide readers with the information which enables them to make something like a democratic choice.
We are a bad lot, perhaps, but without us there would be no democracy and as newspaper people we are concerned about its development and preservation. That is a harder task in Britain than it is in many other countries, simply because our establishment from local councils up to Whitehall is secretive by nature and tradition and its natural undemocratic habits are fortified by our official secrets legislation. If your Lordships would like an example of the kind of official mentality on the question of secrets I can do 1644 no better than recall the words which the noble Lord, Lord Greenhill, has spoken and also his lack of enthusiasm for journalists.
When we plead for a relaxation of the current restraints we do not get very far. We are in bad odour, as is the electronic press. Many politicans attack not only the admittedly gross and indefensible behaviour of a few newspapers, but feel generally that the members of the media are getting above themselves, that they are too powerful and ought to be restrained. In fact, there are two restraining Bills presently going through Parliament. One deals with privacy and the other gives the aggrieved person a right of reply.
The Government themselves use their administrative power to curb and manipulate. Like all governments, they are keen on the freedom of the press and on open government—but not too much of it. However, the Bill has much wider implications than the perils of the press. The Bill is tremendously important to Her Majesty's Opposition of today, and Her Majesty's Opposition of tomorrow, too. An Opposition stinted of information is an Opposition crippled.
The Bill is also important for public servants who are sometimes faced— rarely, perhaps, but occasionally—with a moral dilemma. It is important to spycatchers and to spies. Finally, the Bill is important to our citizens who have to stump up £100 million or more a year to keep the security services going in, we are told in the other place, eight to 11 large buildings in London. Surely they are entitled to a better idea of how their money is spent. The present Government seem to want not only to keep the operations secret but also to keep the services hidden; though a Bill to legalise them which is now going through this House is very much to be welcomed.
The Bill becomes unacceptable from its very first clause. It states that a person who is, or has been, a member of the security and intelligence services is guilty if he discloses any information about security or intelligence that he has obtained in the course of his work. The section is not, thank God, retrospective but it means that he must stay silent until the day of his death. Only when he reaches the pearly gates is he entitled to tell the story of his life.
We are never to be able to probe the purposes and policies of the services, to discover whether they are efficient, whether some members are trying to put a spoke in the political process, or whether some are going a bit too far on the wrong side of the law. Even when a member of the services comes across a real and obvious iniquity he may not tell a Minister or a Member of Parliament, and certainly not a journalist. He may go to the staff counsellor. What happens then? Who knows? Whom does the counsellor inform? The situation could be pretty inconvenient for an officer's career. How can the information get into the parliamentary system, where it may well belong? The information may do no harm to the country, but the Government will not limit the ban in this instance to harmful disclosures. Even when members of the security services are coming to the end of their careers or are retired they are not allowed to say a word about their experiences, even though they may lie in the remote past.
1645 There is the convention about which several noble Lords have spoken this afternoon that former officers who want to publish their reminiscences might do so after showing them to the relevant authorities who could ask for the necessary changes to be made. That convention protected the national interest and saved authors from prosecution under the Act.
But after Ponting and Wright, it seems that the Government began to claim that members of the secret services had a life-long obligation to maintain confidentiality about their work. When Anthony Cavendish wrote a book largely to defend his old friend and colleague, Sir Maurice Oldfield, it is said that the authorities refused to look at it and warned him that he could not sell it without a breach of confidentiality. So he gave the book away to his friends; and nothing was done because the authorities were reluctant, for very obvious reasons, to bring a charge under the Official Secrets Act.
The right honourable gentleman who sits for Brighton, Pavilion, gives general support to the Bill. At the Second Reading in another place he asked whether the Government would not be wiser to go hack to the old vetting procedure. He received satisfying assurances. However, when the Bill went through Committee the assurances were very much weakened. It was said that permission to publish would only be given in exceptional circumstances. Yet, as the noble Lord, Lord Bethell, said, there have been scores of such books. I wonder whether the Government can think again while the Bill is going through this House and repeat the original assurances.
There was reference made to the public interest defence. The noble Lord, Lord Greenhill, said how well it was expressed in the White Paper. I believe that it was very badly expressed. It has caused a good deal of misunderstanding of what the idea is about. The White Paper states:The Government recognises that some people who make unauthorised disclosures do so for what they themselves see as altruistic reasons and without desire for personal gain".They make it a matter of conscience. The idea of those of us who want a clause of this kind is perhaps best expressed in a new clause that some tried in vain to add in another place. It narrows the defence very greatly. The clause states:It shall be a defence for a person charged with an offence under this Act to prove that the disclosure or retention of the information, document or other article was in the public interest insofar as he has reasonable cause to believe that it indicated the existence of crime, fraud, abuse of authority, neglect in the performance of official duty or other serious misconduct.".That is pretty narrow and I believe that it can be further improved. It leaves one or two matters to chance. I hope that in this House we can find some defence for a person who breaks the code in the public interest in order to reveal a crime and to bring a criminal to book.
§ 6.43 p.m.
§ Lord Blake
My Lords, I welcome this Bill. I believe that the Government have shown courage in taking on this extremely difficult task that has baffled successive governments over many years. This Bill will replace confusion with clarity and obscurity with 1646 lucidity. Let us not be distracted, as we were in the debate on the White Paper at the end of July, by talk about the need for a freedom of information Act. Whatever the case for that, it is not relevant to this Bill, which is simply a measure to replace the old and discredited Section 2 of the Official Secrets Act 1911, which, as many of your Lordships have said and which met universal agreement, was a catch-all measure so absurd as to be almost unworkable.
The most controversial clause in this Bill is Clause 1. It makes criminal the disclosure without lawful authority by a member of the security or intelligence services or a person notified that he is subject to the same rules, any information relating to security or intelligence in his possession. That is an offence irrespective of any damage it might have caused. It is an absolute offence like driving a car over the limit. There is a similar absolute ban on disclosure of information acquired by special investigation powers. That is to be found in Clause 4. which so far has not been discussed very much by your Lordships.
It has been argued in another place and also here this afternoon that there should be a public interest defence, certainly as regards Clause 1. I imagine that some attempt will be made to insert it by an amendment at the Committee stage in this Chamber. I hope that the Government will stand firm on that as far as they can. I thought that the case against a public interest defence was expressed admirably by the noble Lord, Lord Hunt of Tanworth. I cannot do it better myself so I shall not attempt to do so. I merely say that public interest is a very vague concept and people's views of what it constitutes are liable to wide variations.
In all cases except the two mentioned, the Bill obliges the prosecution to prove damage or harm. It defines damage in respect of each of the areas where this proof is required and where the issue will be left to the jury. I believe that that is a great improvement on what went on before. One of the purposes of this Bill is to substitute clear rules and guidelines for a vague and foggy catch-all section. The media will now know just where it stands. At any rate, it will have a much better idea when the provisions become law—not that it will thank the Government in any way for it. That would be far too much to hope for.
I shall finish with a point raised in debate in the newspapers, here and elsewhere, as regards the information passed on by Crown servants to Sir Winston Churchill. According to Martin Gilbert, whose official biography of Sir Winston is probably a more reliable source than Churchill's own memoirs since there were certain things that he felt inhibited from saying when he was writing them, for obvious reasons, there were some 20 or so Crown servants who passed on information to Churchill. I believe that all of them would have been guilty under the 1911 Act, though the noble Lord, Lord Greenhill, may not agree. The question raised is whether they would have been guilty of an offence had the measure that we are discussing this afternoon been law at the time.
It is by no means clear that they would have had no defence under this law. I am pretty certain that some disclosures were authorised, but if I am wrong I shall apologise to the noble Lord, Lord Mishcon. I believe 1647 that some were authorised by Ramsay MacDonald at some stage. They were a very small part so it does not affect the main argument. I wish to remind noble Lords that Ramsay MacDonald was Prime Minister in the National Government from 1931 to 1937.
§ Lord Blake
My Lords, I stand corrected. My point is that it is by no means clear that Crown servants would have had no defence under the present Bill. Some of those who informed Churchill could have argued that in defence (the main issue) their disclosures were not damaging to the public interest, and a jury might well have accepted that argument. Under this Act the person who, if prosecuted, would have had no defence at all was Sir Desmond Morton, who was the director of the Centre of Industrial Intelligence from 1929 to 1939. It was some kind of offshoot of the Committee of Imperial Defence. He would have had no defence under the Bill because he was in the intelligence service, but the others in the Foreign Office, the Air Ministry and the War Office might well have had a defence. I mention the matter only to put the record straight for it is an issue that is often misunderstood.
I have one final point on which I should welcome the guidance of my noble friend the Leader of the House. The noble Lord, Lord Zuckerman, seemed to suggest that he would have been prosecuted if he had revealed in the House certain details about armaments negotiations after he had ceased to be a civil servant. I wonder whether my noble friend can confirm that one cannot be prosecuted for anything one says in the House. Surely we possess what is called absolute privilege and there is nothing on which a prosecution could be founded for anything said in this House or in another place. I believe that to be correct, but perhaps my noble friend will confirm whether or not it is. I welcome the Bill and strongly support its Second Reading.
§ 6.51 p.m.
§ Lord Hemingford
My Lords, I belong among those who believe that the balance which the noble Earl mentioned when he opened the debate has not been correctly struck in the Bill. It is not a question of saying that there should be no secrets now. However, one should beware, as the noble Lord, Lord Mishcon, said, of falling into the error of believing that whatever government do, they do for the best. I follow also the noble Lord, Lord Bethell, in his discourse on the possibility that the security services might at some time in the future go over the top.
Safeguards have been erected in the Bill and in the Security Service Bill. They were outlined with wonderful clarity by the noble Lord, Lord Hunt of Tanworth, who took us through each successive stage of the procedure. However, when he reached the end of the line he was reduced to saying that if a civil servant was seen to be acting in a truly conscientious way, he found it difficult to believe that it would be possible to secure a conviction. I do not believe that that is good enough. We ought not to have to rely on 1648 what I believe is called a perverse jury. We ought not to deny a defendant the ability to argue the point that what he or she had done was more right than it was damaging. It is precisely with the last case position, to which the noble Lord, Lord Hunt, took us, that a public interest defence would come into play.
Perhaps I may pick up the Minister's metaphor. We are not calling for either a flyover or a coach and horses but for one of those ultimate slip roads filled with gravel into which a lorry can be driven to prevent it crashing it out of control. Whether one calls it a public interest defence or something else, some provision should be built into the Bill to avoid making such a disclosure automatically an offence without regard to any surrounding circumstances.
The other night on television I watched with great interest an interview with Christabel Bielenberg, an Englishwoman who lived in Hitler's Germany throughout the war. She said that because the press was muzzled people were not aware of what was going on in the concentration camps. When she was asked to draw one conclusion from her experience she said it was that a free press, however badly it behaved—I acknowledge that ours often does behave badly—was an essential bulwark of freedom. I believe that the Bill will have the inhibiting effect on the media which the noble Lord, Lord Hutchinson of Lullington, described and I hope that in Committee we shall correct this.
I say that against a background of what seems to be an attempt by the Government to represent Britain's media as little more than a sectional lobby dedicated to nothing but its own narrow interests. The process began when the previous Home Secretary insisted on establishing a legal precedent by giving journalism a special position under the Police and Criminal Evidence Act. He did so even though all the most influential editors in the country did not want it. That put the media in a false position and has enabled people to represent subsequent media concern over legislation as special pleading.
For all their faults, the British media represent the interests of the public in obtaining information and acting as watchdogs. The Association of British Editors, representing senior journalists across all the media, and the more local Guild of British Newspaper Editors, whose parliamentary and legal committee watches legislation with great and responsible care, have both expressed grave concern at the absence of a public interest defence in the Bill. I belong to both those bodies. I can say that their concern is not with their own narrow interests but with the effect on the public's right to know what is going on. Therefore their concern should not be dismissed as special pleading. I take issue with the noble Lord, Lord Greenhill. and his description of the motives of journalists in drawing attention to what they regard as the dangers in the Bill.
There are other matters to which we shall come in Committee which ought also to be corrected, but I am sure that if we could insert into the Bill a public interest defence we might be able more readily to acknowledge some of the Bill's merits. I refer to the useful fact that it will remove from the scope of the criminal law much that was previously and 1649 ludicrously covered by it, and to the greater clarity which it will bring to an important area. If we had a public interest defence and one or two other minor improvements it would then be a real improvement on the discredited Section 2 of the Official Secrets Act. However, without a public interest defence it will be nothing of the kind.
Even if we had a public interest defence, I do not think it would be possible to wax so enthusiastically as to agree with the Home Secretary's description of the Bill as producing an earthquake in Whitehall. I suspect that Whitehall will find ways to keep confidential matters which I believe ought to be made public. Nevertheless, it is welcome that people would not be branded as criminals if they leaked utterly harmless information. The Government have made it clear that they would still be quite likely to lose their jobs, but at least they would not be liable to be thrown into gaol.
I hope that in Committee we shall give the various representations in favour of the public interest defence more impartial consideration then they were allowed in another place. There I think party discipline was strongly enforced and the Bill was not subjected to line by line scrutiny, which I think it needs. As a result, the Government were in a way able to impart a gloss on the Bill which is not present in the wording. I hope that we shall look more objectively at what the text of the Bill actually says. Despite that, a significant number of government supporters entertained serious doubts about the Bill, particularly about the absence of a public interest defence.
§ 7 p.m.
Lord Campbell of Croy
My Lords, your Lordships may recall that I have been raising intermittently in this House for some time the need to replace Section 2 of the Official Secrets Act. Therefore noble Lords will not be surprised to learn that I welcome the fact that this is now happening. I spoke in the only debate in Parliament on this matter over 10 years ago on the Second Reading in this Chamber on the last attempt to replace Section 2 by means of the Protection of Information Bill 1979, which was then withdrawn. I also accept that an administration which is prepared to grasp the nettle, as the Government are now doing, cannot avoid difficult decisions on consequential and related matters. Those decisions must be taken.
Through the publication of the Government's White Paper, my noble friends and my right honourable friends, have listened to the views expressed and have made some changes—"not enough" I am sure will be said by some of your Lordships. It is surely impossible, however, to meet everyone's views on how best to achieve the optimum balance between security and freedom.
I shall now make a few comments on the Bill. Because I have also been advocating that the secret organisations—that is, the Security Service and the intelligence organisations—should be cocooned within a separate regime, I applaud the fact that the Bill does just that. I expressed that view in the debate in my name which took place on 16th March last year and in the White Paper debate which took place on 29th July. Therefore I need not now repeat my 1650 arguments. Moreover, I asked a question during the Second Reading debate last week on the Security Service Bill about whether members of that service would now be Crown servants as the Security Service is being placed on a statutory basis. I said then that I would wait for a reply on this Bi El because it contains a definition of Crown servants for the purposes of this Bill. Today may not be the occasion for a detailed reply to my question—indeed that may happen at a later stage—but I again put down a marker.
One of the controversial issues which many noble Lords have raised today is the notion of a public interest defence. I shall only say that it does not exist at present, it has not existed and it would be something new being created. I agree with the noble Lord, Lord Hunt of Tanworth, on this issue. There will be situations where an official is worried about possible impropriety. In my view, taking action on his own to make information public is not the best way of dealing with the matter. I can understand reluctance to take the matter up with the immediate superior, or to ask to see the permanent secretary or the head of the Civil Service. The noble Lord, Lord Hunt, today confirmed that is the present approved course.
I ask the Government whether there should be an equivalent in future to the staff counsellor, who has been brought into existence for the security and intelligence services. There could perhaps be one for the Home Civil Service and another for the Foreign and Commonwealth Office. I put forward that suggestion because it may be a way to deal with the problems of ethics and propriety, where indeed the official may be quite wrong because he has completely misunderstood what is happening. There is also the possibility, I am afraid, that such a defence could be used simply as a pretext by an official who is determined to leak information for other reasons. Therefore I agree with the Government on the issue of a public interest defence.
I turn now to the writing of books and articles. I hope that the system of consultations beforehand, as mentioned by my noble friend Lord Home, will continue where secret information is, or might be, involved. I also support the system that drafts should be sent in for vetting if such matters arise. I have seen that practice working satisfactorily when I was an official in the Foreign Office many years ago. I hope that it will continue under the Bill. Certainly it is the practice in the United States.
The noble Lord, Lord Greenhill, pointed out that authorised disclosure is not a matter which would be an offence under the provisions of the Bill. Therefore it is important that authorisation should be sought and consent given, or qualified consent or refusal. I should like to add that the system will fail, or fall into disrepute, if there are inordinate delays. Authors and publishers will justly feel that they are being badly treated. I suggest to the Government therefore that the system must be made to work expeditiously.
There is then the question of lifelong silence. Again, anyone entering the secret organisations, as I said in previous debates, should, when he is recruited and first enters the service, fully understand that that obligation is one which he takes on. However, that 1651 does not mean that later, or after retirement, he cannot write a book or an article which touches upon his life. But if there is anything which might involve secret work, then that again must be vetted and authorised.
One hears general comments to the effect that there is little point in taking as much trouble as we do to protect secrets because the Soviet Union must already know many of them. I accept that that may be so. No doubt the KGB operates a sophisticated intelligence service like other great powers. However, I profoundly disagree with the view expressed, for the reason that there are other regimes in the world from which we should withhold information about our defences against terrorism or aggression. Of course the obvious example at the moment is that of Colonel Gaddafi, and in the recent past that of Idi Amin and General Galtieri. It would be wrong to present such people gratituously with secret information.
I welcome the fact that a vast range of information will no longer be treated as official secrets. There must still be sensitive and confidential information outside the six special categories. They are to be dealt with under the provisions in the Bill by means of disciplinary action if they are disclosed without authorisation.
My noble friend Lord Renton raised the question of the Budget and Cabinet Papers; and indeed that matter has been raised by other speakers. My understanding is that they will be covered by disciplinary action; but the disciplinary action must be such as to be severe enough to make sure that there is no temptation to do this.
In our present system of government we cannnot avoid situations in which the process of decision-making produces information or documents which are highly sensitive, though the subjects can be quite ordinary in the case of domestic matters; for example, housing, electricity or transport. Moreover, the media would be glad to know what is happening and which Ministers and departments are arguing with each other and why.
The system of Cabinet collective responsibility allows for sharp disagreement before a decision is taken. However, once taken it is supported by everyone in the Cabinet and the Government. I can recall occasions when I was an official and a Minister—indeed, I am sure other noble Lords will have similar recollections—when after considerable arguments which went on for weeks the Minister responsible for the decision has had to make an announcement, often in the other place, and some of us have known that he had been arguing in the minority in the Cabinet discussions. Had that fact been known, his authority would have been eroded. He was arguing the case, having accepted the majority decision of the Cabinet.
There is of course the other part of the system; namely, the right of resignation. If it is a matter of such importance that the Minister feels that he cannot carry on, under our system he resigns. An outstanding example of that was given by my noble friend Lord Thorneycroft in 1958. He illustrated that principle. As long as we continue with the principle of 1652 collective responsibility there will be confidential or sensitive papers and information, including advice given by civil servants, which should not be disclosed.
However far freedom of information may be extended in this country in the future, the press cannot expect to be given the role of providing blow-by-blow accounts of the process of arriving at decisions. It would stultify the system. It would make it more difficult for full and frank advice to be tendered by the Civil Service. This is not a matter merely of embarrassment for the government. I must make that clear. I agree with what the noble Lord, Lord Hutchinson, said, that we must ensure that, when enacted, the Bill is not used to protect the Government from embarrassment. This is part of our procedure for reaching decisions in Cabinet government. It may be a bad system and it may be changed; but while it exists we cannot avoid these situations.
The noble Lord, Lord, Ardwick as a journalist, pointed out that it is journalists who are the recipients of leaked information. I make the observation that when over the years I have recognised a leak when it appeared in the press, it was usually fairly easy to guess from where it had come—which camp—because it was slanted in favour of that camp. The press is often not being told the true picture when it receives a leak, because the object of the leak is to support one side of the argument. I suppose that the same could be said of the diaries of the late Dick Crossman which were mentioned earlier. When they were published, I was aware that several of his former colleagues rejected his version of events. Although in his case it was a matter of memory, I noted what was said earlier about fiction in that respect. I support, as I hope noble Lords will realise, the general principles of the Bill, but look forward to the discussions that will take place in the later stages.
§ 7.17 p.m.
§ Lord Thomas of Swynnerton
My Lords, I venture to intervene in the debate because, having listened to such interesting contributions, one or two things occur to me. It is worthwhile recalling that one of the main reasons why a new Official Secrets Act is required is that the size of government since 1911 has increased out of all proportion to what it was then. Secondly, it is increasingly recognised in the country and by Ministers that the functions of government are often greatly helped by discussions with journalists, academics and others. That realisation is one of the most encouraging developments of the past 20 years.
Thirdly, there is the fact—affecting the whole issue of the intelligence or security services—that in the past, and especially in 1911, it was thought that a clear distinction was to be drawn between times when we were at war and times when we were at peace. However, since the beginning of the cold war it has not been so easy to draw that distinction. We have not been publicly at war with the Soviet Union or Communist countries; nevertheless at times our conflict with those countries has seemed more desperate and more acute than it was on several occasions in remoter times when we were at war.
1653 Our friends and allies have different policies towards such matters, as the noble Lord, Lord Hutchinson of Lullington, pointed out. When he referred to other great democracies having more liberal policies, he probably was not referring to those nearest to us on the Continent but primarily to the United States. That is a factor which we and the Government will presumably be considering carefully in relation to any amendments to the Bill which may be tabled. After all, the United States has a Freedom of Information Act upon which historians such as my noble friend Lord Bethell and myself have sometimes drawn, not only to understand the policies of the United States Government but also those of the British Government. That is a new dimension to public information.
I agree strongly with the noble Lord, Lord Mishcon, that it will be worthwhile taking a great deal of trouble and spending time to make the Bill as good as it possibly can be. The Act which emerges from the Bill could last for at least another 80 years. I felt some sympathy when my noble friend Lord Bethell said that at some time, however unlikely it seems at present, this country could be faced with governments a good deal more oppressive than we have had in the past but whose oppressiveness could he tempered by a good Act at this stage.
No government I know of finds the line between information and security easy to draw. By chance, I had the pleasure this morning of taking the chair at a meeting addressed by a Soviet general. It may have been the first time, or at least the first time for many years, that a Soviet general has spoken in a Committee Room of this House. He told the audience that there was no Official Secrets Act in the Soviet Union. He decides what he will publish and what he will not publish in his, as I understand it, official life of Stalin. He told us that he believed that sooner or later there would have to be a law which would decide where the line should he drawn.
In general I support the Bill. I add my congratulations to the Government. My noble friend the Minister will have noticed how many noble Lords on the other side of the House have congratulated the Government on grasping the nettle of the Official Secrets Act. I felt that the noble Lord, Lord Hutchinson, was going rather far and being a little churlish when he referred to the Bill as in no way a liberalising measure. As my noble friend Lord Thorneycroft pointed out, vast wads of information are now likely to be free of the risk of prosecution.
Confidence within a great deal of domestic government will be more easily preserved because in future that confidence will be protected by a sense of loyalty rather than by the criminal law. That surely reminds us that the smaller the organisation the easier it is to insist upon confidence. If governments wish to have their secrets protected, the best solution is to cut the size of government.
In respect of intelligence and security (which, I suppose it is true to say, have inspired the Government to have a new Official Secrets Act) a draconian policy is surely desirable while existing threats survive. All the same, my noble friend Lord Bethell asked some uncomfortable questions. I look 1654 forward with great interest to seeing his amendments, as would any historian.
Sooner or later, the post-1939 security and intelligence papers will cease to be matters of great moment just as the security and intelligence matters of World War Two are open to discussion as a result of decisions already taken. Some might also believe that anything which Philby exposed and passed on to the Soviet Union might even now be inquired into by responsible historians. I agree with the noble Lord, Lord Hemingford, that international relations and organisations are more complicated than perhaps the Government understand. After all the media plainly will continue to want to speculate on many affairs relating to international subjects and will want to get their facts right. It is difficult to comment effectively unless those facts that have been discussed are known. So the public interest defence, despite what the noble Lord, Lord Greenhill, said, could play more of a part than might have been totally recognised on this side of the House.
This is particulary important since, just as the distinction between war and peace is less clearly drawn in the late 20th century, so is there a less obvious distinction between domestic and international policies. The whole aim of the European Community, for example, is presumably to end that distinction by means of European union. Yet the European Community is by most definitions an international organisation as defined by Clause 13 of the Bill.
However, when you say that, you suddenly realise that it is an international organisation of a different type to the United Nations or other international organisations since it has a parliament to which we send members from this country and whose law affects us. Therefore, perhaps it is not an international organisation after all. There are similar ambiguities which suggest the possibility of ways in which the Bill might be able to be improved by amendment. Those will surely be considered sympathetically by the Government.
§ 7.22 p.m.
§ Lord Bonham-Carter
My Lords, this has been a long debate of a somewhat discursive nature, and I shall make my remarks as brief as possible and try to avoid repeating what has already been said more than once on many occasions. However, I find that the course of the debate has reflected a difference of opinion which has emerged on several occasions in the last few months between two attitudes towards freedom and liberty in general.
There is the view held on one side—the view expressed in the first amendment to the American Constitution, and also in the European Convention on Human Rights—that freedom of speech and liberty are fundamental rights. There is the alternative view, which is really the British view, that liberty is what is left behind by common law and statute. Therefore it is a residual right rather than a fundamental right. This seems to have shown itself in this debate as it did in earlier ones.
It is that difference of attitude that has led this country to find itself before the European Court on 1655 certain occasions, and this particular Bill, if it becomes law, will lead to a repetition of that position. As to whether or not Irangate could have occurred had this Bill been law in the United States at the time, I do not think there is much doubt that it could not. Therefore we have to consider whether such iniquities as Irangate could occur in this country, and if they could occur what means have we to prevent them, or to reveal them when they have occurred.
I suspect that the noble Lord, Lord Blake, is correct in saying that those people in the Civil Service who gave Mr. Churchill information before the war were breaking the law. The reason why they were not prosecuted was in point of fact because that particular Act had lost credibility and people were reluctant to use it, particularly in the case of a man of the distinction of Mr. Churchill.
That is why some of us have slight reservations about the presence of the new Bill before us which may be a more effective measure not so much for keeping secrets as for preventing truth coming out. The Bill before the House is extremely important, and it has constitutional implications for which we have particular responsibilities.
In any democracy it is essential that certain information should be kept secret, but it is equally true that it is just as important in a democracy that there should be a free flow of reliable information. That is the balancing factor. You have your secrecy, but you must have your free flow of reliable information. That is why some of us would have been happier if the new Official Secrets Bill had been accompanied by the promise of some legislation that would have assured freedom of information to the citizens of this country.
The debate today seems to me to be a prelude and an introduction to the Committee stage that will come along in a few weeks' time. On this occasion and as regards this Bill the Committee stage is of particular importance. I take that view because, first, in another place this Bill of constitutional importance was guillotined, much to the discomfiture and displeasure of many of the supporters of Her Majesty's Government. Indeed, of the 16 clauses eight were simply not discussed. There is therefore a heavy responsibility on this House that we discuss them, and discuss them carefully, and that we have time to discuss them carefully.
If we believed all that the Home Secretary claims for this Bill I must confess that we would be looking forward, I suppose with apprehension, to an earthquake in Whitehall and to a Niagara of information that would be made available to the people of this country. All the noble ex-permanent secretaries who are sitting on the Cross-Benches and who have made such notable contributions to our debate today would be trembling at the prospect of the secrets of their lifetimes being torn from their bosoms. That would be attributed to the revolutionary and radical measure that Mr. Hurd has introduced. Somehow I do not feel that that is exactly the climate of this debate. I do not expect the walls of Whitehall secrecy to come tumbling down when, and if, this Bill is passed. But what we should do at this 1656 point is look briefly at the balance sheet of liberty before and after the Bill is passed.
It is true, as several noble Lords have said—and in particular the noble Lord, Lord Renton—that the Bill formally releases large areas of information which had previously been within the scope of the Official Secrets Act 1911 but which, when this law is passed, will be outwith the law. Leaks or information concerning education, pensions, the Budget and water privatisation, which were previously within the ambit of the law, will no longer be within the ambit of the law. That is the chief achievement, so far as I can see, of the Home Secretary's measure.
However, it seems to me to be a largely theoretical achievement. When was the last journalist prosecuted under the Act of 1911 for leaking information of the kind that I have just mentioned? The answer is, I think, never. The earthquake that the Home Secretary spoke of, which was to shake the foundations of Whitehall, is largely a figure of speech. In practice, when the Bill becomes law, The Times education correspondent will not feel that a great load of anxiety has been lifted off his shoulders.
In these large areas the writ of the Act of 1911 never ran. Even in those parts covering security and defence, after Ponting a prosecution was a risky and unpredictable business. So it could be argued that this country found itself without an Official Secrets Act, and hence the necessity of the one that we have before us, which I would argue is in some respects wider in its scope and more easily enforced than the one that it succeeds.
My noble friend Lord Hutchinson of Lullington has dealt effectively and fully with the very important question of what the harm test means. This is the crux and the crucial test by which the prosecutions will be decided. There are the consequences of removing the word "serious" before "injury" in the Franks definition. What we are now left with is "damage" or "jeopardy", which are much weaker and vaguer than "serious damage to the national interest", which Franks preferred. The word "serious" has now been dropped and "harm- now means that any jeopardy or damage, however minor can be an offence.
The significance of dropping the word "serious" can be put in another way. Franks' "serious injury" corresponds roughly to the classification in government documents of "secret"; "harm" or "damage" corresponds to "confidential". Where there is one secret document, there are probably 50 or 100 confidential documents. Thus the effect of dropping the word "serious" is vastly to increase the area covered by the legislation. That is an important point that has not been brought out clearly. Dropping "serious" is something that has happened since the 1979 legislation, as far as I can understand.
Furthermore, it is in my view disingenuous and misleading for Ministers to say that the Bill will only penalise disclosures that, in the Home Secretary's words,cause serious harm to the public interest".I regard that as a disingenuous explanation of what the Bill sets out to do. The words "public interest" do not appear in the Bill, and the Government have rejected every single attempt to introduce by 1657 amendment the word "serious". Therefore, let us not take that definition as meaning what it appears to mean.
That is just one example that I offer your Lordships of the need to examine the Bill in Committee with the utmost care over and beyond the major issues that have been discussed tonight, such as public interest as a defence, about which I do not propose to say anything further; lifelong confidentiality, about which I do not propose to say anything further, except to assent most heartily to the dictum of Mr. Justice Scott that this type of iron curtain is unachievable; and prior publication, except that I think that it raises rather difficult and complicated issues. It was not in the 1979 legislation. It is presumably in response to terrorism. One can see that it is perfectly true that information published in a highly technical journal which might be picked up by, let us say, the USSR would not necessarily be picked up by a small terrorist unit, whether the IRA, Abu Nidal, or anyone else, and that information might be significant and important to them. It is therefore an exceptional case, and has to be looked at seriously.
The trouble is that the blanket proposal as set out in the Bill produces the ludicrous Spycatcher situations that simply bring the Government, the country and the law into total disrespect. I wonder whether this is not a case that we should try to deal with not by means of the law but by means of some arrangement such as the D notice whereby special cases have special answers of an administrative rather than a legal kind.
As I have said, the Bill deserves the closest scrutiny in Committee in matters both great and small. The great issues have been aired pretty thoroughly; the smaller, because of the guillotine, have been touched hardly at all. For example, I would point out that the definition of the basic offence of "disclose" is set forth in Clause 13(1), which has not been looked at; the definitions of Crown servant, of proscribed persons and who it is proposed to proscribe are in Clause 12(1). In Schedule 2 it emerges that a section in the 1920 Act making it an offence,to have possession of any official document issued for his use alonehas not been repealed. The new offences that the Bill introduces have not been examined or discussed.
Much has been left to be done in this House by another place. I only hope that the Government will regard the amendments that we have put with a slightly more open and flexible attitude than they regarded the amendments put in another place where out of the total only one word was changed. I think that the way in which they treat the amendments will be a measure of the respect in which they hold this House.
§ 7.36 p.m.
§ Lord Elwyn-Jones
My Lords, we have discussed issues of great importance in the spheres of public policy involving, as the debate has so graphically shown, on the one hand the safety of the realm and on the other the right of the individual citizen and of Parliament to the utmost information available 1658 compatible with that safety. If I may say so, I thought that that latter category was somewhat caricatured in the speech of the noble Lord, Lord Greenhill of Harrow. However, that is by the way.
There have been powerful speeches from great experts—Cabinet Ministers, distinguished civil servants, eminent journalists and historians. In the course of the debate we have had powerful critical speeches from a number of noble Lords—the noble Lords, Lord Mishcon, Lord Jenkins of Hillhead, Lord Hutchinson of Lullington, Lord Hatch of Lusby, Lord Ardwick, Lord Hemingforcl and Lord Bonham-Carter. Some searching questions were raised by the noble Lord, Lord Bethell. We shall clearly have an exciting Committee stage. I agree with all that has been said by the noble Lord, Lord Bonham-Carter, as to the importance of the Committee stage and subsequently, and the importance, if I may give advance notice now, of enough time being made available by the Government for full discussion of these serious matters.
Apart from the Opposition speeches that I have mentioned, there was the half-way house speech of the noble Lord, Lord Thorneycroft—I hope that he will not mind my so describing it—calling for a balance between the extremes expressed in the debate. We look forward to hearing him, with his customary vigour and cheerfulness, enlightening our debates in due course.
The range covered in the debate was very wide. It was, I think, the noble Lord, Lord Home of the Hirsel, who spoke of memoirs. My own experience of memoirs and secrecy is a curious one. I submitted my autobiography to the Secretary of the Cabinet for his examination. He returned it to me and said, "I am afraid that we must insist on one omission". I asked, "What is that?" He replied, "You have set out in full the Privy Counsellor's oath". It was of course the oath created by Queen Elizabeth I. Apparently it is still a breach of secrecy and security to publish the Privy Counsellor's Oath. I felt somewhat relieved that that was the only omission insisted upon.
The debate has given rise to major criticisms of the content of the Bill. While, of course, we commend the decision to get rid of the intolerable provisions of the 1911 Act, which my noble friend Lord Mishcon demolished so powerfully and which has been a matter of ridicule over the years, the major criticism, as I followed the debate,was directed to omissions in the Bill. The criticism was directed to the omission of a public interest defence. In my submission., there can be little doubt that from time to time the public interest is, and can be, best served by a breach of official secrecy.
Then there was the failure of the Bill to provide that prior publication should be accepted as a reasonable defence in law. The Spycatcher case brought the Government, if I may say so, into some ridicule principally because they did not take proper account of the effect of prior publication. I hope that lesson has been learnt.
The further matter which has given rise to concern is the absence of a test of harm requirement, whenever a criminal offence is to be created. Many 1659 are created by this Bill. Neither secrecy nor justice is well served by the proposed creation in the Bill of several absolute offences. There should be evidence in each case that the national interest has been damaged by unauthorised disclosure of official information. As we have been told more than once in the debate, the test of harm should be the Franks Committee formulation of serious injury to the security of the nation or the safety of the people.
Clause 1, which was queried by the noble Lord, Lord Bethell, and castigated with his customary vigour by the noble Lord, Lord Hutchinson of Lullington, is the most blatant example of the creation of automatic absolute offences; namely disclosures by:(i) "A person who is or has been—;(a) a member of the security and intelligence services".The matter complained of is to be found in Clause 1(1)(a), and also in Clause 1(1)(b). Clause 1(1)(b) concerns:(b) a person notified that he is subject to the provisions of this subsection".In these provisions, the prosecution in a given case would not have to prove any harm or damage to the national interest in order to secure a conviction. The fact of disclosure by the civil servant would of itself suffice, if the disclosure came from a civil servant who is or has been:(a) a member of the security and intelligence services; or (b) a person notified that he is subject to the provisions of this subsection".Any disclosure by such a civil servant, or persons from a wider context than that, is an absolute offence with no requirement of proving any damage to the public interest at all.
Then again under Clause 4(3)(a) of the Bill, it is an absolute offence to pass on unauthorised disclosures with regard to interceptions—telephone tapping— made under the Interception of Communications Act 1985. Information regarding warrants issued under the security service legislation falls in the same category. Again, no evidence of harm need be established to obtain a conviction. In our submission, those provisions are wholly unacceptable as they stand. We shall endeavour to remedy the matter in Committee.
The unauthorised disclosures on defence matters in Clause 2 are not absolute offences. But the provision that disclosure prejudices, or is likely to prejudice, the capability of the armed forces to carry out their task, in our submission is far too indefinite to constitute the basis of a criminal offence. While again unauthorised disclosures in the field of international relations are not absolute offences, the prosecution under Clause 3(2)(a) must prove that the disclosure:jeopardises the interests of the United Kingdom abroad".That is the language used in the Bill. Similar language is used in Clause 3(1)(b) with regard to disclosure of confidential information which is received from other states or international organisations.
In my submission, the concept of jeopardy is not a useful guide either to juries or to journalists. We shall 1660 have to deal with that. It is more than a Committee point. It goes to the substance of the creation of new areas of offences which can greatly disturb and interfere with the liberty of journalists, and indeed that of civil servants for that matter.
The test applied in Clause 3(3)(b) concerns whether the disclosure described is "likely" to jeopardise United Kingdom interests. In my submission those words are not easily quantifiable as the foundation of criminal offences.
As the House has been told in the course of this debate, the Franks Committee proposed a far more rigorous definition of the harm test; namely, that the disclosure would result in serious injury to the interests of the nation. Indeed, the report of that committee recommended that information classified below that level should not be covered by official secrets legislation or criminal sanctions. Under the terms of the Bill, anything remotely related to security, no matter how trivial, could be covered.
We have had discussions of an impressive character relating to the absence of any public interest defence in the provisions of the Bill. In my submission, the consequence of that will be that if the Bill is implemented in its present form, it will provide dangerous possibilities of information regarding misuse of governmental power being suppressed by the risk of criminal prosecution if that information is disclosed.
As my noble friend Lord Mishcon pointed out, the defence of public interest is well established and long established in the civil law of confidence. In the Spycatcher case the noble and learned Lord, Lord Goff of Chieveley, described the defence clearly when he said:In a free society there is a continuing public interest that the working of government should be open to scrutiny and criticism".Earlier in the same case the noble and learned Lord, Lord Donaldson of Lymington, the Master of the Rolls, said:The press has a legitimate role in disclosing scandals in government. An open democratic society requires that that be so … The ability of the press freely to report allegations of scandal in government is one of the bulwarks of our democratic society".The public interest defence is what will enable crime, abuse of power and scandal, to be exposed. Without it, in our submission, important areas of public administration will be beyond, and remain beyond, the power of Parliament and of the press. When we come to Committee stage we shall pursue the matter. We prefer the formulae which it is said by the Government at this stage are not satisfactory in order to introduce that element into the Bill.
When I began my observations I stressed the need for a balance between, on the one hand, protecting the safety of the realm and, on the other hand, asserting and establishing the right of our citizens and Parliament to the utmost information available compatible with that safety. In our submission that balance has not been achieved by the Bill as it now stands. It is up to noble Lords in this House to redress the balance. I believe that the public looks to us and expects us to do so. It is a critical time in the history of your Lordships' House in view of the wholly inadequate treatment of the Bill in another place, in 1661 the terms indicated by the noble Lord, Lord Bonham-Carter. This could be one of the finest hours for this distinguished House if we do our duty on the lines that I have ventured to suggest.
§ 7.50 p.m.
§ The Lord Privy Seal (Lord Belstead)
My Lords, I join with the noble and learned Lord, Lord Elwyn-Jones, in expressing my appreciation of a most interesting debate. This Bill, for the first time in 80 years, considerably narrows the scope of the criminal law relating to disclosure of official secrets and leaves decisions to be made by a jury. Like some other noble Lords, I think that at the end of this debate I ought to consider whether the principles on which the Bill is founded are right and whether the structure is sound.
I should like to refer to the areas where I believe there is general—if not total—agreement, because it will be important when we come to scrutinise the detail to hold fast to the central propositions.
First, I would contend that we have recognised that the criminal law has a role to play in the protection of this country's necessary secrets, a role which must go beyond the espionage-related provisions in Section 1 of the Act of 1911. Secondly, stemming from the speech of the noble Lord, Lord Mishcon, I think all your Lordships have agreed that Section 2 will no longer do. We must have something effective, but more narrowly targeted, to take its place. Thirdly, I believe the House recognises—and certainly the intervention of my noble friend Lord Thomas of Swynnerton emphasised the point—that now is the time to make that reform. We cannot prevaricate any further. It is not fair that the present unsatisfactory state of the criminal law in this field should continue any longer.
Fourthly, my noble friends Lord Home and Lord Thorneycroft, together with other noble Lords, welcomed the fact that the Bill will define the limited areas of official information to which the criminal law on official secrets should apply. Fifthly, I think that the House has welcomed, with just a slight reservation on the part of the noble Lord, Lord Greenhill of Harrow, the Government's decision to abandon the idea of ministerial certificates and to leave the decisions established in the legislation to the jury. It follows that it is necessary to establish harm tests, and a great deal of the debate has centred around that point. The Bill does so on an individual basis for a great majority of the circumstances that are covered.
I would also claim that the House has welcomed—and the noble and learned Lord, Lord Elwyn-Jones, made the point in the debate on the White Paper last July—that decisions about prosecutions should, with the recognised exception of the crime category, be made by the Attorney-General. His role in such matters and his independence from government in exercising that role are better understood by many of your Lordships than possibly by myself.
Finally, I would contend that a welcome has been given to the fact that, unlike Section 2, the Bill does not penalise someone who had no reason to know 1662 what it was that he or she was disclosing. That being said, I was surprised to hear the noble Lord, Lord Jenkins of Hillhead, if I understood him aright, say that comparing it with this Bill the blunt instrument of Section 2 of the 1911 Act might just as well have remained in place. I believe there are plenty of people who would not go along with the noble Lord in that contention. After all, if Parliament agrees this Bill vast areas of official information will no longer be covered by the law on official secrets because the present wide offences of disclosure under Section 2 will be removed.
The noble Lord told us that he was not able to secure support for his proposals when in government. My right honourable friend the Home Secretary has been able to go even further than the Franks recommendations. The Bill contains no proposals for ministerial certificates; only six areas of official information remain eligible for protection under the Bill; tests of harm are provided; and all decisions are left to the jury. It is in that context that I was particularly grateful to my noble friend Lord Thorneycroft for emphasising that in his view we have got the basic structure right.
I should now like to take another step and consider whether other proposals raised in this debate to add to that structure or to change it are necessary in themselves and whether they would provide for a better or worse piece of legislation. I am confident that the House will want to test the various proposals that we shall be discussing in the later stages of the Bill against that yardstick.
The noble Lord, Lord Hutchinson of Lullington, suggested that we ought to have what one might call the Franks formula in place of the tests of harm in the Bill, a formula of serious injury to the interest of the nation, or a general test of serious damage. Other noble Lords have spoken along the same lines. The noble and learned Lord, Lord Elwyn-Jones, referred to the issue in his speech.
However, I ask your Lordships to consider whether it would be reasonable to expect a jury to operate such general and unspecified tests of harm without further guidance. The members of the Franks Committee did not think so. Their solution was to have a ministerial certificate to accompany the test. We do not think so. Our solution is to have much more specific tests of harm related to the nature of the information which requires protection. In those few circumstances where we believe all unauthorised disclosures are harmful we say so. Everywhere else the Bill provides individual tests of harm. I like to think that those tests are right for each category and set to the right level to ensure the protection which the nation needs. However, I know that we shall be returning to these matters in the later stages of the Bill.
A matter which occupies almost every speech was whether or not there should be what is called a public interest defence. Many of my noble friends, led by my noble friend Lord Home of the Hirsel, were quite clear in their view that that was not right. In a closely argued speech the noble Lord, Lord Hunt of Tanworth, referred to the disastrous effect which he felt such a defence could have upon relations between Ministers and the Civil Service.
1663 As I understood the noble Lord, he said that it could create an expectation that public servants and others should disclose information of the greatest sensitivity if in their personal judgment, the information indicated behaviour or a threat which concerned them. The noble Lord drew attention, as did other speakers and I now do, to the fact that under such a test it would be for the person concerned to decide whether or not to accept assurances he had been given about his concerns and then to make his own judgment. Once that person had made the decision to disclose, nothing could prevent the harm his act would cause. Whatever the courts decided, the damage would be done.
I really cannot believe that that is a sensible way in which to expect our public service to operate. I am strengthened in that belief having listened to the closely argued speech of the noble Lord on the Cross Benches. With respect, nor do I think it necessary, for reasons that were deployed this afternoon about the various safeguards for people in the public service. I believe that a public interest defence would do untold damage to the public interest and that in practice it would be impossible to operate objectively and clearly the law on official secrets with such a general defence cancelling out all the other carefully structured provisions in the Bill. In his speech, the noble Lord, Lord Hatch of Lusby, raised seven past cases and asked how the Bill would affect them. My answer to him must be very simple: the decision to bring any prosecutions in the circumstances that he briefly mentioned in his seven cases would, under this Bill, be made by the Attorney-General acting independently of government and in any case brought the jury would decide and there would be no ministerial certificate.
§ Lord Hatch of Lusby
My Lords, perhaps the noble Lord will make that point quite clear. If those cases came under the absolute prohibition of revelations, would it not be the jury that would decide? The judge would instruct the jury what to decide as distinct from the way in which matters were conducted in the Panting case when the jury came to a decision despite the judge's summing up. In those cases of absolute prohibition, must not the judge direct the jury to convict?
§ Lord Belstead
My Lords, I very much doubt whether the noble Lord is right is saying that. Certainly, I shall not be so imprudent as to comment on his question. There are two cases in which there is a no harm test. If he is referring to the one involving members of the intelligence and security services, I should point out that I shall come to that case in a moment. However, I should like the noble Lord to look at Clause 1(5) in order to see the reference made in my speech; namely, that it is a welcome point in the Bill that someone who had no reason to know what it was that either he or she disclosed should not be penalised.
Perhaps I may also say very briefly that the Government are not persuaded by the arguments that have been advanced for prior publication defence. It is for those who advocate such a complete 1664 defence to prove beyond doubt that in no circumstances can a disclosure of information that has been published somewhere in the world ever cause the harm from which this Bill seeks to protect us. I do not believe that that can be done or that it is safe or necessary to proceed on such an unlikely assumption. We believe that a further disclosure is bound to result in further harm only in the narrow circumstances that we have described in the Bill. In all other cases, we believe that it depends on the circumstances, and that is a matter for the jury.
A prior publication defence takes all such matters out of the hands of a jury and in many cases it will be impossible to prove that a further disclosure of the same information caused additional harm or that the person making the disclosure had reasonable cause to know that it would. However, with the necessary exceptions that I have described, all that is already provided for in the Bill. A separate defence of prior publication is not needed to achieve all that.
Perhaps I may say a few words about the security and intelligence services, to which both my noble friend Lord Bethell and the noble Lord, Lord Hutchinson, referred. We believe that those services are in a special position. We have marked in the Bill what seem to us very significant differences by providing a separate offence for members and former members of the services and certain of those who work for them. I take absolutely head-on the fact that the Government do not agree with the case put forward by the noble Lord, Lord Hutchinson, in his speech.
As the noble Lord, Lord Greenhill of Harrow, said, we shall not cause some great hardship as a result of the Bill. We shall not impose a new vow of silence on the intelligence and security services. As my noble friend Lord Campbell of Croy always emphasises when he speaks on this subject, people know when they join that they are entering services that depend for their effectiveness on secrecy. They know that they cannot talk freely about their work. They also know that their own effectiveness and, in some circumstances, their own safety depend on the willingness of their colleagues to respect the trust that is placed in them. That is why we conclude that a breach of trust in that area is inevitaby harmful.
Since the publication of last year's White Paper, my right honourable friend the Home Secretary has responded to the point made by the noble Lord, Lord Hunt of Tanworth, in the White Paper debate in this House by providing a test of harm in the Bill for the disclosure of foreign confidences. I believe there was some suggestion in another place that the test could be avoided, but that is not so. It is important to note in this context that tests of harm make it clear that we protect the information provided to us by other countries, not in the interests of those countries but solely in the interests of this country.
My noble friend Lord Home said this afternoon that the price of leaking official information can be exceptionally high; how strongly the Government agree with that! International relations depend crucially on trust between nations. Actions that lead other countries to believe that we do not respect that trust threaten our interests abroad. That is what we seek to protect in the harm test in Clause 3 of the Bill. 1665 If the noble and learned Lord, Lord Elwyn-Jones, will forgive me, although he said that it was perhaps a substantive matter for this afternoon's debate, I believe that the interpretation of the word "jeopardy" is something to which we should return at the Committee stage of the Bill.
Several noble Lords have put questions to me, and in the time available perhaps I may try to reply. The noble Lord, Lord Zuckerman, raised the question of the letter from the chairman of the British International Studies Association which appeared in The Times newspaper about exchanges between officials and researchers involved with international relations. I assure the noble Lord that the Government believe that there is nothing in the Bill which requires any change in arrangements for briefing researchers or academics on international relations matters.
Such matters appear to have been dealt with satisfactorily under Section 2 and the new Bill is much narrower than that provision. The Bill seeks to penalise only unauthorised disclosures, and those officials who brief researchers and others in accordance with their official duties would not make unlawful disclosures and so would commit no offence under the Bill.
However, the noble Lord went on to ask about officials and former officials who wish or are asked co contribute to policy discussions. Again, the Government do not believe that the Bill prevents former Crown servants from taking part in discussions on public policy or current events. They will he free to comment on such matters as they wish with the full weight of their experience, but, as I am sure that no one would wish them to do, such people cannot make unauthorised disclosures of information obtained when they were serving Crown servants which they know to be damaging to the concerns protected by the legislation. I know that noble Lords in that position will have no difficulty in recognising the importance of that point or of making a full contribution to public debate in the light of it. As regards what is said in this House-a subject about which my noble friend Lord Blake asked me we all understand the operation of parliamentary privilege and that privilege does not change.
The noble Lord, Lord Houghton of Sowerby, drew attention to the importance of maintaining the confidences entrusted to the Inland Revenue. I am happy to confirm that the Government intend to include a provision in the Finance Bill to ensure that such confidences continue to be protected by the criminal law when this Bill repeals Section 2 of the Official Secrets Act 1911.
My noble friend Lord Renton raised a point in that context. He was quite right to say that the Bill would not apply to the disclosure of Budget proposals or Cabinet documents that do not relate to matters in the six categories to which the Bill applies, but that does not mean that they will be unprotected. As my noble friend Lord Bethell said, while my noble friend Lord Renton was temporarily out of the Chamber, disciplinary proceedings can still be brought against civil servants who do not keep such matters 1666 confidential. What is happening is that the sanction of the criminal law will no longer apply.
My noble friend Lord Home of the Hirsel raised the question which I know has attracted the attention of many of your Lordships this afternoon about writing and hooks written by Crown servants and former Crown servants. My answer to my noble friend is that Crown servants, or more likely former Crown servants, may seek authorisation to make disclosures relating to their work.
I should just make clear on this matter with regard to the position of the members and former members of the security and intelligence services that if a former member of one of those services finds that he or she wishes to make disclosures subsequently relating to his or her work, then the person concerned must not do so unless he or she receives authorisation from the former service to do so. In practice, cases where it has been possible to give authorisation in the past for the publication of accounts of the operations of the security or intelligence services have been few.
My noble friend referred to the book of Sir John Masterman. Similarly such authorisations will in future be rare and given only in exceptional circumstances. We believe that this is right if the nation's secrets are to remain properly protected. I hope that I have given the answer which my noble friend was seeking which was that the same avenues will remain open as have existed before.
The noble Lords, Lord Ardwick and Lord Hemingford, both spoke about the position of journalists. Perhaps I may briefly say that the present law, as we all know, makes any unauthorised disclosure of any official information a criminal offence. Journalists who publish such information will do so presumably in the hope that they will not be prosecuted. I do not see that there is much comfort to the honest journalist in that and it only brings the law into disrepute.
As for international relations, we are not extending the law, we are narrowing it by introducing harm tests. I should be enormously surprised if journalists were to think that in some way they ought to make unauthorised disclosures of official information which they know will put or are likely to put in danger this country's interests abroad or which endanger the safety of British citizens abroad. Those are the tests under the Bill. Once again, I realise that these are matters to which noble Lords will probably wish to return. I thought that I would say that this evening before we leave the Bill. Perhaps may say to my noble friend Lord Campbell of Croy that under the Bill members of the security and intelligence services are Crown servants.
I hope your Lordships will agree that the Bill is a significant measure. In contrast to Section 2 of the present Act, it carefully targets the areas and identifies the circumstances where the protection of the criminal law continues to be required. It identifies what needs to be proved, provides defences relevant to the offences created and leaves decisions to the jury. It promises a more effective and soundly based law on official secrets than this country has ever had before. Perhaps most important of all, it will ensure 1667 that those secrets which need to be kept are kept effectively. I commend the Bill to your Lordships.
On Question, Bill read a second time, and committed to a Committee of the Whole House.