§ 6.55 p.m.
§ The Minister of State, Home Office (Earl Ferrers) rose to move, That the draft order laid before the House on 18th December 1989 be approved [5th Report from the Joint Committee].
§ The noble Earl said: My Lords, the draft order has been considered by the Joint Committee of Statutory Instruments. It has two simple purposes. The first is to prescribe employees and board members of certain bodies, office holders, and some employees of these office holders so that they may become treated as Crown servants for the purposes of the Official Secrets Act 1989.
§ The second is to prescribe certain bodies so that they can control or can authorise the disclosure of protected information. The draft order is, I hope, largely self-explanatory. There are just three general points that I should like to make which I venture to believe will assist your Lordships.
§ First, everybody who is listed in the order is already subject to the Official Secrets Act 1911. My right honourable friend is not therefore seeking to impose additional burdens or restrictions by this order. The effect of the order is simply to apply the lighter controls of the 1989 Act in place of the heavy, blanket protection in Section 2 of the Official Secrets Act 1911.
§ Secondly, the Government do not believe in unnecessary prescription. My right honourable friend has not therefore sought to prescribe everybody who may regularly receive information which is protected by the 1989 Act. His proposals bear only on those who not only receive but also produce sensitive information in the limited categories which the Act covers. The prescription order affects about 27,000 people. Your Lordships may like to compare that with the 500,000 or so who at present are treated under their own legislation as Crown servants for the purposes of official secrets legislation.
§ Thirdly, the disclosures which will be covered by the new Act are only those which cause harm that is serious enough to merit a criminal sanction. The prosecution will have to satisfy a jury that any relevant harm was done. The effect of prescription for an individual is that, in such circumstances, it will be for the defence to prove that he did not know that harm was likely to arise from his disclosure.1001
§ I would not wish to detain the House with a detailed account of the schedules to the draft order. I hope that what I have said has been sufficient to explain to your Lordships the purposes of the order. In each case the principle has already been established. If the draft order is approved, as I hope it will be, my right honourable friend proposes to bring the Act into force on 1st March. I beg to move.
§ Moved, That the draft order laid before the House on 18th December 1989 be approved [5th Report from the Joint Committee]. —(Earl Ferrers.)
§ Lord Prys-Davies
My Lords, I thank the Minister for introducing the order and for his brief explanation of its main purpose. I am sure almost everyone will agree that openness in government is the standard we must aim for. The flow of information is essential in a democracy if there is to be informed criticism of government policies and actions and the use of public resources. That point must be continually stressed. I am sure the Minister is aware that many people are critical of this Government for not doing as much as they should to achieve the aim of open government.
I take the point that the combined effect of this order and the Official Secrets Act 1989 is to reduce the number of people who are treated as though they were civil servants for the purpose of official secrets legislation from half a million to 27,000. Welcome though that announcement is, the figure of 27,000 is still too high. It includes, for example, the health ombudsman. I should be interested to learn what sensitive papers of the state find their way to his desk which need to be protected by this legislation.
The Comptroller and Auditor General and the staff of the National Audit Office and their counterparts in Northern Ireland are included in Schedule 2. That situation was the subject of considerable adverse criticism by the Standing Committee on Statutory Instruments. There is not only a suspicion but a conviction that the reports of those officers will be more restricted in future than hitherto because of their inclusion in this order. Can the noble Earl, Lord Ferrers, give a categoric assurance that there is no basis whatsoever for that anxiety? Such anxiety would be the cause of considerable alarm.
I should like to turn to an item in Schedule 3. Having read the explanatory note —which is far from crystal clear—I have come to the conclusion that the Civil Aviation Authority will be empowered by this instrument to dispose of documents. Presumably it would be authorised to destroy documents. I should be interested to learn in what circumstances and conditions that power would be exercised by the Civil Aviation Authority—assuming that I have correctly understood Schedule 3.
I have no other questions to put to the Minister. I have a very strong conviction that we have not come to the end of the road in regard to this order.
§ Lord Hatch of Lusby
My Lords, the noble Earl has rightly pointed out that the number of persons who are subject to the Official Secrets Act has been drastically reduced. It is not simply a question of 1002 numbers; it is also a question of what will be suppressed and why. It will now be the responsibility of those who are accused to show that any revelations which they have made are not against the national interest.
The old Official Secrets Act was bad enough, but under that Act Clive Ponting was acquitted. The first question that I should like to ask the noble Earl is whether, if this order in conjunction with the Official Secrets Act is approved, Clive iPonting would ever have been brought to trial. Would there have been no jury and would the revelations that he made have automatically led to his conviction? If that is the situation, we are potentially suppressing information which is in the national interest and not against the national interest.
Secondly, what effect will this order have, if any, upon the present Wallace case? Will it prevent civil servants who knew of this dirty tricks operation —Clockwork Orange, as it is called —from giving evidence? Will it prevent them from being brought before a Select Committee of another place in order to reveal what went on in what is now seen as likely to have been a set of operations which if not illegal were certainly underhand and against the national interest and against the interests of Parliament and parliamentarians?
The third question that I should like to ask the Minister follows the remark made by my noble friend concerning the Comptroller and Auditor General. Why is he included under this order? How will that situation affect the kind of work that he has been doing with great distinction —work which we hope he will continue to do? What will be the situation in regard to the alleged bribery (I use that word advisedly) in the sale of Rover? It will be the job of the Auditor General to look into that kind of evidence which concerns the use of public money. Will that situation be inhibited by the approval of this order?
As the noble Lord, Lord Prys-Davies, stated, in this age we are seeking more open government and more public information. I am sure that the noble Earl has been in the United States, where a great deal more public information is available. It is often shown to the public on television. The democratic process rests on an informed public.
Although the number of people concerned is reduced by the Official Secrets Act and by this order, there is a great danger that the amount of important and vital information about which the public and Members of Parliament have a right to know may be decreased.
My Lords, the noble Lords, Lord Prys-Davies and Lord Hatch of Lusby, were concerned that there was not enough openness of government. I think that there has been an astonishing openness of government. It may not have gone as far as some people would like. However, when one thinks of what the earlier Official Secrets Act covered and the number of people it covered, most people were surprised when the present Government came along with the Official Secrets Act 1989 and loosened the bonds of the 1911 Act to 1003 the extent they did. We are simply concerned here with saying that there are certain secrets which any government must have. That is separate from freedom of information, which I think is the point to which both noble Lords referred. We say that there are certain secrets that any government must have. Therefore, those who are endowed with those secrets must bear that responsibility. This order says that there are other people who work in those spheres, or similar spheres, who should be treated, for the purposes of the Act, as Crown servants.
I shall resist the temptation to follow the noble Lord, Lord Hatch, into going back in history and trying to speculate what would, or would not, have been the case over Ponting had the present Act been on the statute book. I think that there is no virtue in that. Nor will I be drawn into the possibility of discussing what might happen over the Wallace affair. The position certainly over Ponting is that he was a Crown servant. We are dealing with people who are not Crown servants but who are occupied in certain businesses which may put them in a position of having sensitive information, and therefore for the purposes of the Act are to be treated as Crown servants.
If that is so —and perhaps I may remind both noble Lords of this —they will be covered by the new Act, and only disclosures which are likely to cause harm will be serious enough to merit a criminal sanction. Then it is up to the defence to prove that they did not know that harm was likely to arise from their disclosure. That gives the defence a considerable benefit.
The noble Lord, Lord Prys-Davies, said that he thought that the figure of 27,000 was too high. That may be his view, but I think that he will understand that a drop of the magnitude that the Government have seen to be prudent to allow is a considerable drop, and there have to be certain people bound by the categories of secrets.
The noble Lord, Lord Prys-Davies, asked me whether I could give an assurance that no one listed in the schedules will be worse off as a result of the prescription. I can give him that categorical assurance. Everyone who is listed in the order is already subject to the Official Secrets Act 1911. The effect of the order therefore is simply to apply not the same controls as they were subjected to under the 1911 Act, but lighter controls.
Both noble Lords referred to the National Audit Office headed by the Comptroller and Auditor General. It has the responsibility of certifying the accounts of government departments and certain other bodies, checking that the money voted by Parliament is spent for the purposes that Parliament intends and in accordance with the rules of government accounting. It also carries out examinations of the economy, the efficiency and the effectiveness with which departments have used their resources. For both these purposes the National Audit Office has extensive access to government departments' papers.
As my right honourable friend the Minister of State explained in another place, prescription will 1004 not affect in any way the Comptroller and Auditor General's existing powers of access to information in departments, or his existing ability to report to Parliament, or pass information to the Public Accounts Committee.
The noble Lord, Lord Prys-Davies, also referred to the Health Service Commissioner. Of course the blanket protection for information held by the commissioners will be removed with the coming into force of the Official Secrets Act 1989. It is necessary though that those handling protected information, disclosed or generated in the performance of the functions of the parliamentary commissioners, should be subject to the Official Secrets Act. I think that that is right.
The noble Lord also referred to the Civil Aviation Authority. It must observe the rules of natural justice, which include notifying applicants and objectors of all relevant factors which may influence the authority's decision, and give them an opportunity to comment on them. Prescription under Schedule 3 means that the Civil Aviation Authority can, for example, authorise the disclosure of protected information if need be.
Although the noble Lords are as concerned about the disclosure of information, as they were on the passage of the Official Secrets Bill when it was going through Parliament, I hope that they will accept that governments have the right, and indeed the duty, to have secrets, and in the public interest to protect those secrets. We have sought to limit that protection so far as we can to those most importantly connected with that secret information. I hope that your Lordships will agree that this draft order seeks to do that.
§ 7.15 p.m.
§ Lord Hatch of Lusby
My Lords, perhaps I may press the noble Earl on what he has just said. Am I not right that he is saying that governments, and governments alone, will determine what is in the national interest and what is against it, and that these cases will no longer go before a judge to determine? If that is the case, or whether or not it is the case, why have the Government apparently been retrogressive on even the old Act by putting the onus of proof on the defence?
If the Government are so sure of their probity in their interpretation of the national interest, why do they not take reponsibility for proving that the national interest has been breached? Surely it is the normal practice in British judicial tradition that it is for the prosecution to prove and not for the defence. This seems to be a total reversal of the whole history of our juridical practices.
My Lords, I do not want to go over the whole business of what we discussed during the passage of the Official Secrets Bill. I know that the noble Lord, Lord Hatch, found difficulty in accepting the position. But when he says that it is the Government who have to determine what a secret is, the answer is that it is, because the Government have their secrets, and they have correctly to determine what those secrets are.
1005 If somebody divulges secrets, he can be caught if he has divulged secrets that cause harm which is serious enough to merit a criminal sanction. If that situation comes about, he can be prosecuted and the prosecution would have to show that it would be a cause of harm. The defence in that case can say that he did not know, when he divulged that information, that it would cause harm. That is a defence, and a very powerful line of defence too for anyone accused of divulging a secret: that is, if he can show that he did not know that harm would arise by that disclosure. I think those are both important considerations, which any person who is accused of divulging secrets could take into account.
§ Lord Prys-Davies
My Lords, can the Minister help the House just a little further? I understand that the Government come to the view that a matter is of national interest, but in fact is that assessment open to challenge in the courts? That is the first question. The second question arises really from my few comments on the order. Am I right that it is the Civil Aviation Authority that has the power to destroy documents? I asked the Minister in what circumstances, and under what conditions, it would destroy documents. Is the noble Earl able to help the House on that second issue?
My Lords, I have momentarily forgotten the first point raised by the noble Lord. But perhaps he will be kind enough to repeat it.
§ Lord Prys-Davies
My Lords, we accept that the Government form the view that a matter is in the national interest. Is that self-assessment open to challenge in the courts?
My Lords, I am most grateful to the noble Lord for repeating his question. I was thinking temporarily of his second question. The Government consider what constitutes a secret. If a person divulges that secret and it gets into the newspapers, it is up to the prosecution to prove to a jury that that person had done relevant harm under the Act. The Act states what the harm is when a disclosure is made and the prosecution would have to say that, by divulging that information this person has caused a criminal offence by divulging harm which is relevant under the Act. It is then up to the defence to use, as a method of defence, the fact that he did not even know that, when he divulged the information he would create harm. As I have tried to explain, that is a significant form of defence.
The noble Lord referred to the Civil Aviation Authority. The authority may produce sensitive information and, in determining air transport licensing cases, the authority's tribunal subject to the supervision of the Council on Tribunals must observe the rules of natural justice which include notifying applicants and objectors of all relevant factors which may influence the authority's decision, and give them an opportunity to comment on them. Prescription under Schedule 3 means that the Civil Aviation Authority may authorise the disclosure of information. It may authorise the disclosure, but that is not the same as saying that it can destroy 1006 documents. The point is that the Civil Aviation Authority is a body which can authorise the disclosure.
§ Lord Prys-Davies
My Lords, I am sorry to come back to the point, but I shall not detain the House for long. In that case, of the three authorities named in Schedule 3, which one is empowered to direct the disposal of documents? I had assumed that the disposal of documents meant the destruction of documents.
The three bodies are prescribed under Article 4 which enables them for the purposes of the Act to authorise or restrict disclosure and to direct the return or disposal of documents in one case. I believe that I am right in saying that that case involves the Civil Aviation Authority, but if I am mistaken I shall let the noble Lord know.
§ On Question, Motion agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 7.23 to 8 p.m..]