Sitting of 3 April 1989

Preamble
Reassembling after the Easter Recess, the House met at half-past two of the clock: The LORD CHANCELLOR On the Woolsack.
Prayers—Read by the Lord Bishop of Guildford.

Energy Efficiency: Funding
Lord Ezra Lord Ezra asked Her Majesty's Government:
Whether, further to Lord Hesketh's reply at col. 506 of the Official Report,21st February 1989, they can indicate the way in which energy efficiency funds have been redirected to the regions.
The Parliamentary Under-Secretary of State, Department of Energy (Baroness Hooper): My Lords, as part of the new policy initiatives for energy efficiency announced in June last year, the regional activities of the Energy Efficiency Office will receive substantial extra support in 1989–90. This will enable the 11 regional energy efficiency officers to conduct marketing efforts at regional level, to help them to hire local expertise to advise commerce and industry and for local promotions and events.
Lord Ezra: My Lords, I appreciate the regional effort being made in energy efficiency, but can the noble Baroness indicate whether the funds made available for regional offices and the funds made available for the centre add up to what was available last year; and whether that is intended for the future? Secondly, does she not agree that an increased effort in energy efficiency is the best and most effective way of minimising the greenhouse effect?
Baroness Hooper: My Lords, the emphasis of the campaign has been redirected to the regions, as has, to some extent, the money. Taking into account all the measures to which I referred in my original Answer, the total cost of regional support for 1989–90 over and above basic office running costs will be nearly £400,000, compared with£80,000 in 1988–89. On the noble Lord's second supplementary question, I agree that energy efficiency measures are extremely important in combating the greenhouse effect, and it is towards this end that the Government are directing their policies.
Lord Hatch of Lusby: My Lords, regarding energy efficiency, can the noble Baroness tell the House whether it is the case that the research being done into the provision of energy through wave power has now been abandoned; and if so, why?
Baroness Hooper: My Lords, that question strays too far from the original Question on the Order Paper.
Lord Cledwyn of Penrhos: My Lords, we must be grateful for the advance which the noble Baroness has announced. However, if the Government believe
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that energy efficiency is crucial in the battle against the greenhouse effect, as she has just said, why have they cut the budget of the Energy Efficiency Office by half? How can she reconcile that with the other things she has just said?
Baroness Hooper: My Lords, this is a classic case of a pump-priming exercise. We believe that the pump has been primed. The ability that the Government now have to change the resourcing of the Energy Efficiency Office is a direct result of the successes to date in raising consumer awareness of energy efficiency. A number of the measures formerly carried out by the Government and by taxpayers' funding are now being carried out by industry itself. The funds which the Government are providing are over and above what else is being done by industry itself as a result of the original successful campaign.
Lord Cledwyn of Penrhos: My Lords, is the noble Baroness really seeking to imply that this tremendous global problem, in which the Prime Minister herself has indicated an interest, should be dealt with by finances from private industry? Is it not the case that the Government themselves, under the aegis of the Prime Minister, should take all the initiatives, including the financial initiatives, in this matter?
Baroness Hooper: My Lords, the Government are taking initiatives. They have already announced a new best practice scheme in this respect. The Secretary of State has announced the new drive for energy efficiency in the public sector. There are also the reductions that will take place in the areas of direct subsidies and general advertising, where the general awareness of the public has been raised.
Lord Hatch of Lusby: My Lords, in her reply to me was the noble Baroness seriously saying that research into wave power has nothing to do with energy efficiency or with the greenhouse effect, which she mentioned in her reply to the noble Lord, Lord Ezra?
Baroness Hooper: No, my Lords. I said that the noble Lord's question strayed a little far from the original Question on the Order Paper. I should be happy to answer a specific question which the noble Lord may wish to put as he has in the past on that subject.
Lord Ezra: My Lords, so that we can be quite clear about the sums involved, can the noble Baroness confirm that, taking all aspects of government support for energy efficiency in 1988–89, the sum made available was just over £20 million and that that will be reduced in the coming year to £15 million and in the year after that to £12million? That includes all that is being done to support the regional effort.
Baroness Hooper: Yes, my Lords. The noble Lord is correct in the figures that he quotes. The 1988–89 figure of £20·8 million will be £15 million in 1989–90. However, in response to his Question on

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the Order Paper I indicated that larger funds were available to the regional officers as a result, because this is the way in which we feel it best to target our approach.
Lord Molloy: My Lords, the House is becoming confused at this stage. How can all these reductions be classified as priming the pump?
Baroness Hooper: My Lords, I was not trying to classify the reductions as priming the pump. I said that the original campaign was a pump-priming exercise. We believe that it has been successful and that we can use the taxpayers' money better through a more targeted approach now.

European Football: English Clubs
2.43 p.m.
Lord Mulley Lord Mulley asked Her Majesty's Government:
Whether the recent statement by the Under-Secretary of State for the Environment(Minister for Sport), in consequence of amendments made by this House to the Football Spectators Bill, that he will seek to defer the re-admission of English clubs to European football competitions represents the policy of Her Majesty's Government towards football and this House.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh): My Lords, my honourable friend the Minister for Sport has not drawn any connection between the amendments made to the Football Spectators Bill during Committee stage in this Chamber and the re-admission of clubs to European competitions. He has said that he considers it inconceivable that English clubs should be re-admitted next season, since no new measures to prevent hooligans travelling abroad have been taken since the disturbances at the European championships in Germany last June.
Lord Mulley: My Lords, I thank the Minister for that Answer. However, is it mere coincidence that his honourable friend the Minister for Sport made that statement the week following the decisions of this House, and that even as recently as yesterday the Sunday Times reported that the consequence of the delay is that the Government will not support the very important meeting taking place next week concerning the re-admission of English clubs? Further, has the Minister for Sport taken any steps to correct any of those mis-statements by the press, because he did not connect the two matters? As we well know that he does not understand football—or never will, until it is played on the River Thames—will the Government now give at least some credit to the English clubs which have done their best to improve matters?
As regards the second part of the Bill which concerns foreign travel, to which no one in this House has taken any exception, will the Government reconsider the position and support the English clubs next week?
Lord Hesketh: My Lords, in answer to the last part of the question posed by the noble Lord, Lord Mulley, I believe that my honourable friend the Minister for Sport actually refereed a game of football only the other day. With regard to the Government's position over the application for returning to Europe for the forthcoming season, we have always made it absolutely clear that until we see a factual improvement, which we hope will come about with the introduction of the Bill which is before your Lordships' House at present, we shall not support such an application.
Lord Dean of Beswick: My Lords, does the Minister agree—or is he aware—that the statements made by the Minister for Sport, which were made during the passage of the Bill through your Lordships' House, regarding the attempt by English soccer clubs for re-admission to Europe appear to carry a hallmark of a very crude attempt to blackmail the football authorities and followers in this country?
Why do the Government persist in picking on football in relation to violence when one could see such unlicensed thuggery as took place the other Saturday in a Rugby Union match between England and Wales? The thuggery consisted of both fist and boot. I ask again, why do the Government insist on picking only on the game of soccer?
Lord Hesketh: My Lords, the simple fact is that the Question concerns UEFA which concerns Europe. The Heysel Stadium matter means a great deal in Europe and must be dealt with. That is why we are not supporting an application for re-admission to European competitions for this forthcoming season.
Lord Graham of Edmonton: My Lords, why does the Minister for Sport presume that, when his football Bill is challenged effectively in your Lordships' House, the appropriate Ministerial response is to put the boot in further as regards English football being played abroad? Is that not really the behaviour of the football bully—a fact which the Bill seeks to deny?
Lord Hesketh: My Lords, I am afraid that the answer to that question is simply: no.
Lord Elwyn-Jones: My Lords, when my noble friend Lord Dean of Beswick referred to licensed thuggery in the England and Wales game, I think that he must have been looking at reports of a different match. There was only one incidental loss of temper which ended in a moment. Is that not so?
Lord Hesketh: My Lords, it is always a pleasure to stand in the shadow of a great aficionado.
Lord Dean of Beswick: My Lords, I suggest that my noble and learned friend on the Front Bench should read the press reports concerning that particular match.
Lord Mulley: My Lords, I ask the Government at least to give some credit for the immense work

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which has been done in the matter. In regard to the controversy about the membership scheme, that issue has no bearing whatever on the European competitions because the supporters of European clubs who come here cannot be members of the scheme anyway. Therefore why are the Government holding up their supportߞor, at least, as the Minister of State said, taking active steps to punish English clubs? Is it because, as I believe, they are upset by the decision of this House?
Lord Hesketh: My Lords, first, the Government have always recognised that great efforts have been made to curb hooliganism. However, it is our determination that we should return to international football as the country which is setting the example of how to battle against international hooliganism, especially football hooliganism, be it at home or abroad.
Lord Taylor of Gryfe: My Lords, is the Minister aware that Scottish football clubs are welcome in Europe and that there is no prohibition, or no blackmail, by the Government, which prevents them from playing in Europe? Is it not therefore vastly unfair to English football supporters that Scottish football supporters can travel to Europe and enjoy the game while they are to be denied that privilege?
Lord Hesketh: My Lords, I think that the noble Lord, Lord Taylor of Gryfe, is spreading his wings somewhat further than the Question on the Order Paper. I must remind him that this had nothing to do with the Government. The fact is that there was a disaster in Belgium. It is because of that disaster that English football clubs are not playing in Europe. Further, that is why the Government are trying to do something to help England to be proud again so that this country may once more be able to raise its head in international football.
Lord Hatch of Lusby: My Lords, is the Minister aware that over the past few months there have been far worse outbreaks of violence in Germany, France, Italy and Spain than there have been during the comparable period in this country? That is long before the Government's Football Spectators Bill becomes an Act of Parliament.
Lord Hesketh: My Lords, perhaps I may remind the noble Lord, Lord Hatch, of what I said earlier in answer to the Question. We wish to be in the forefront of an international campaign, and that answers a part of the noble Lord's question. Again the noble Lord failed to mention the Heysel Stadium. As regards this Question which relates to Europe, that means a great deal.
Lord Mellish: My Lords, perhaps I may clear up some anomalies. I hope that the Minister will readily agree that the amendment which the Committee passed has nothing to do with European football. The important point is that all we are saying in the amendment in the main is "Will you please give the committee which the Government intend to set up the right to decide what shall be best for football?" That is not advocated by the Minister who said that
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football should be governed by football. Is that a very sensible slogan and is it not time that the Minister stopped trying to be autocratic?
Lord Hesketh: My Lords, I would never attempt to be autocratic in your Lordships' House, particularly when being asked a question by the noble Lord, Lord Mellish. The noble Lord is absolutely correct that the amendment has nothing to do with the European aspect of this matter. As regards the other part of his question, we shall be returning to that matter at the Report stage of the Bill in your Lordships' House next Monday.

UK-EC: Visible Trade Figures
2.51 p.m.
Lord Jay Lord Jay asked Her Majesty's Government:
What was the balance of total visible trade between the United Kingdom and the rest of the European Community in 1987 and 1988.
The Secretary of State for Trade and Industry (Lord Young of Graffham): My Lords, the United Kingdom visible trade with the other countries of :he European Community was in deficit by £9 billion in 1987 and by £13·3 billion in 1988.
Lord Jay: My Lords, this country had no visible trade deficit with those other countries before we joined the EC. As the deficit has become worse in almost every year since that time, what reason has the Minister for believing that if further restraints on imports are removed in 1992 the situation will not become even worse?
Lord Young of Graffham: My Lords, in 1992 there will be further economic activity within the entire Community. Over the past year or two we have seen problems of success because the growth of this country's economy has increased demand so much. Public purchasing pressure has grown faster than our manufacturing capacity can presently supply. That is a problem of success and I expect that over the next few years the situation will right itself.
Lord Barnett: My Lords, does the Secretary of State recognise that most of us disagree with the views of the noble Lord, Lord Jay, on the Common Market?
Noble Lords: Order, order!
Lord Barnett: My Lords, the Secretary of State will recognise that most of us disagree with the noble Lord, Lord Jay, and his views on the Common Market. Nevertheless, will the Minister accept that the Chancellor's views on a high exchange rate are unlikely to help the balance of trade either with the Common Market or with anyone else?
Lord Young of Graffham: My Lords, I am very grateful to the noble Lord, Lord Barnett. I appreciate that the views of the noble Lord, Lord Jay, are not universally accepted throughout your Lordships'

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House. I say to him that at the end of the day it is not price that sells goods: it is design, quality, after-sales service, delivery and all the matters that have enabled the Japanese to succeed over the past 20 years and, alas for British industry, have led to it not always succeeding.
Lord Chelwood: My Lords, does my noble friend recollect that among the outright opponents of our joining the EC the noble Lord, LordJay—who was certainly one of the more intelligent and respected —used to argue that being outside the tariff barrier of the Community would not matter very much because of perfectly good alternative markets? Does my noble friend know whether that is still his view?
Lord Young of Graffham: My Lords, I believe that we have gone beyond the point of looking at tariff barriers. The whole process as regards 1992 is to look towards the removal of non-tariff barriers; namely, those much more subtle barriers which will slow down the growth of the economy of Europe as a whole. I do not believe that there is time left for us to be "Little Englanders" and live in an island state by ourselves. We are now part of the greater Community in Europe and we must maximise that opportunity in order to ensure that the people of the United Kingdom benefit most from it.
Lord Mason of Barnsley: My Lords, is the Secretary of State aware that eight years ago we had a trade surplus with Western Europe of £500 million? In the past year there has been a deficit of over £8,000 million and £4,000 million of that deficit was with West Germany. I would not regard that as a success. If I were the President of the Board of Trade or the Secretary of State for Trade and Industry, I would regard that as a colossal trade failure. If that trend continues until 1992 we shall be swamped with European products. Is the noble Lord going to reverse that trend or not?
Lord Young of Graffham: My Lords, the noble Lord, Lord Mason, may well be still of the view that it is government who make goods and who design and manufacture products. I suggest to the noble Lord that he leaves your Lordships'House—only temporarilyߞand goes out to Barnsley and other places around the country to see the new spirit of enterprise that exists in our land. He should experience the feeling that exists and visit places in the one country in Europe that has seen unemployment decline for 30 months. The noble Lord should also experience the situation in the one country in Europe that has unemployment at a lower level than the average of any of the large industrialised nations. The noble Lord should then judge for himself.
Lord Bruce-Gardyne: My Lords, perhaps I may ask my noble friend whether your Lordships should regard the figures that he gave in his initial Answer as a sign of considerable progress. Is it not the fact that nowadays you can only sell goods abroad by giving people the money to buy them whereas imports are provided by the suppliers and they give
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you the money? As a result exports are consumption foregone to no conceivable purpose and imports are the benefits of other people's work that you are paid to receive. Therefore are not the figures highly satisfactory?
Lord Young of Graffham: My Lords, I am not sure that I follow the exact logic of my noble friend's argument. If anyone tells me that my figures are satisfactory I accept his remarks with thanks.
Lord Jay: My Lords, if an ever-growing deficit is a sign of success are we to expect it to increase indefinitely?
Lord Young of Graffham: My Lords, I am sure that the noble Lord, Lord Jay, will understand the answer which I shall give him now. If he looks at the cause of the increase in the deficit he will see that a substantial part of it relates to capital equipment, semi-manufactured goods and raw materials. It is part of the process of British industry gearing itself up and the benefit of that will be apparent in the years to come.
Lord Ezra: My Lords, the noble Lord was quite right in his answer to the noble Lord, Lord Mason: it is not for government to create exports, but they can provide the climate in which exports can be developed. In that connection will the Minister indicate what is the Government's present policy towards the British Overseas Trade Board? To my knowledge it has had its resources progressively diminished over recent years. Can the Minister say whether that trend is now going to be reversed and that we are going to make a real effort to improve our trade balance with our European partners?
Lord Young of Graffham: My Lords, I am very grateful to the noble Lord, Lord Ezra. As regards what the Government are doing to create a climate to promote exports, that point can best be answered by the figures that we see continually relating to those from overseas who settle within our shores in order to manufacture in this country. We have the lowest rate of corporation and payroll tax. Those who come to the United Kingdom come here in preference to anywhere else in the Community because the climate is right in this country. Those who come here will be manufacturing goods to be exported. Those goods will form part of our export surplus in the future. As regards the British Overseas Trade Board, I pay a great tribute to the valuable work done by the chairman and by all the members of that body. We have looked at its work and we have continued to support it. We have refined that support. That body is greatly appreciated and I for one value immensely the work that it does.
Lord Hatch of Lusby: My Lords, the noble Lord boasts about the proportion of capital goods that are imported into this country. He characterises that as part of the Government's success. Is it not the case that part of the capital goods consists of items such as machine tools? Those items used to be made in this country but are no longer made here, and are imported from abroad as a result of the decline

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of our own manufacturing industry because of the Government's policy over the past 10 years.
Lord Young of Graffham: My Lords, perhaps I may say to the noble Lord that I do not claim success for the Government in industry or commerce in this country. It is the success of the people of our nation. They are the people who produce the goods and design the products. As regards the noble Lord's interest in machine tools, it is true that in the past we lost a large part of our machine tool capability because we did not keep abreast of the times. However, I must tell the House that as I go round the country I see more and more evidence of the machine tool industry reasserting itself. British goods, British machine tools are now being designed in a form in which they can not only be used by British industry but can be exported.

House of Fraser: DTI Report
3 p.m.
Lord Williams of Elvel: My Lords, I beg leave to ask a Question of which I have given private notice; namely, to ask Her Majesty's Government:
Whether they will now publish the DTI inspectors' report into the affairs of the House of Fraser in view of the fact that extracts have been widely circulated and overseas publication would appear to be imminent.
Lord Young of Graffham: My Lords, I thank the noble Lord, Lord Williams of Elvel, for giving me the opportunity of answering this Question. I am very glad to do so. As noble Lords will be aware, in April of 1987 my predecessor appointed inspectors to investigate the affairs of the House of Fraser Holdings plc. They reported to me on 23rd July last year.
The matters they disclosed were of such a nature that I had no choice but to refer the report to the Serious Fraud Office and to the Director of Public Prosecutions. This step was meant to ensure that due process of law was applied to the inspectors' findings. Despite this, Lonrho plc, led by Mr. Tiny Rowland, their chief executive, has since then been relentless in seeking publication of the report, which is still premature, and a reference to the Monopolies and Mergers Commission of the takeover of the House of Fraser in 1985.
The Court of Appeal recently upheld, by a unanimous judgment, my decision not to publish the report for the time being, and not to refer the takeover to the MMC. I was nevertheless prepared to assist Lonrho in agreeing to a provisional reference under the Fair Trading Act 1973, to become effective only if the House of Lords ruled in its favour at the appeal hearing which begins on Monday of next week.
The reasons for my present stance are well known. There are no public interest grounds for a reference to the MMC. As regards publication, I am determined that this should take place as soon as possible. Indeed, it is my dearest wish; and I have
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no interest in delaying the process. But it was clear as soon as I received it that there would have to be inquiries by the prosecution authorities. They have taken some time, but they are now well advanced and are proceeding as swiftly as possible under the superintendence of the Attorney-General.
Publication now of the full report, before the prosecuting authorities have completed their inquiries, would interfere with the principle that all citizens of this country are entitled to a fair trial of any criminal charges that may arise from such a report and might hamper their inquiries. Indeed, the prosecution authorities have told me that their inquiries might have to stop if there were publication now. My stance in all this was fully endorsed by the Court of Appeal recently and I cannot and I will not change it now, least of all in response to the antics of the Observer newspaper and Lonrho.
I turn now to the part in this affair which has been played by the Observer and Lonrho in recent days. On 30th March, the Observer issued a special edition reproducing large parts of the report and commenting on it at length. I understand that Lonrho received a copy of the report on or about 23rd March, but extracts from it were not published by the Observer until 30th March which happened to coincide with the date of the annual general meeting of Lonrho which are the proprietors of the newspaper. I note that the Observer was even prepared to go without advertisements and to bear the full cost of the issue by allowing newsagents to keep the whole of the 25p charged for it. So much for commercial good sense and editorial independence. Indeed, if I could quote from the original prospectus of the Observer, as recalled recently by a former deputy editor of that newspaper, from which I fear it has sadly departed of late, I shall be.
"unbiased by prejudice, uninfluenced by faction, and my whole principle is independence".
My Lords, I greatly deplore the Observer's action which was both unlawful and irresponsible. I also greatly deplore Lonrho's use of the special edition at their annual general meeting. Lonrho state that they did not solicit a copy of the inspector's report and had it from an anonymous source. I am making urgent inquiries to establish the facts. But even if Lonrho's account is true, it does not exonerate them or the Observer. Far from it. Both know well that only I have the lawful authority to publish that report; that Lonrho's copy was improperly given to them, and improperly used by them; that use by them and the Observer would amount to a grave breach of confidence and of Crown copyright; and, last but not least, would be likely to prejudice next week's legal proceedings before the Judicial Committee of your Lordships' House in which Lonrho are the appellants.
It was for all these reasons and for those which I have outlined above that shortly before noon on 30th March I obtained an injunction restraining the Observer and Lonrho from any further publication of the special issue. A similar ban was enforced in Scotland later that day. I shall make every effort to maintain these restrictions, and I shall therefore resist any attempts by the parties in the High Court or elsewhere to discharge the injunctions.

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Next week the House of Lords begins to consider Lonrho's appeal against the unanimous judgment of the Court of Appeal in my favour. The Judicial Committee of your Lordships' House is the proper forum for deciding these issues, and the Government will not be compelled to change their stance by improper pressure from any other quarter. The rule of law will prevail.
It has been rumoured that copies of the report are being published in Germany and elsewhere and it is asserted that this removes the reason for withholding publication here. It may well be that German readers of any such document may find it interesting, although I have my doubts. However, they will not of course be invited to be on any English jury and no question of further prejudice can therefore arise.
As many in your Lordships' House may well be aware, Sir Edward du Cann, the chairman of Lonrho, has refused to return all the leaked copies of the report in Lonrho's possession or to give me voluntarily a sworn affidavit stating just how a copy came into his hands in the first place. I believe this shows an extraordinary lack of respect for the due processes of law and is even more surprising in view of the battery of lawyers said to be advising Lonrho and the Observer on this matter. Sir Edward is a Privy Counsellor and a former Minister in my department. He is well aware that there can be no excuse for such conduct. The report ought immediately to have been returned to me, although I can understand the temptation to glance at it first.
My counsel is today applying to the High Court for an order for the return of the remaining copies of the report, together with damages and an affidavit. I wish to assure noble Lords that urgent and thorough inquiries are now going on to establish the source of the leaked report.
In conclusion, noble Lords will wish to know that Lonrho and the Observer will not be successful in their attempt to cast me in the role of the Duke of Wellington. I shall not publish and I shall not be damned. It is not my independence or my reputation which is at stake, but that of a prominent newspaper and a prominent public company. I shall not be persuaded by the antics of commercial interests engaged in a private vendetta to compromise the public interest. They will not succeed in diverting me from the correct path, which is to ensure that the prosecution authorities are not impeded in the proper course of their duties. In that context, I shall publish the report as soon as I can, and I repudiate the suggestion that I wish to hide its contents or that it criticises my department.
I have given in this Answer as full an account of the circumstances as I can within the constraints put upon me by the current High Court hearing and next week's proceedings in the House of Lords.
Lord Williams of Elvel: My Lords, the House will be grateful to the Secretary of State for his Answer to my Question. At the outset I wish to say that I regret the use of this House for personal attacks on people who are not Members of the House. I believe we have to deal with this matter on a reasonably rational basis.
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Do not the Government recognise that there is an element of absurdity in the present situation? Is not the noble Lord aware that all interested parties must by now know what is in the report, and most of them know precise chapter and verse? The noble Lord referred to rumours about publication. Is it or is it not the case that copies of the report are at this moment being printed in Switzerland and elsewhere? If that is the case, is it not utterly ridiculous that it is not now officially available in the United Kingdom?
Furthermore, does the noble Lord recognise that tomorrow I shall be tabling amendments to the Companies Bill to strengthen takeover regulations along the lines of the inspector's recommendations? Judging from the variation which was allowed by the High Court this morning to the Government's injunction, the proceedings of this House will be fully reportable in the press. If the noble Lord wishes to know how I know what these recommendations are, I would refer him and other noble Lords who are interested to the Library of this House, which, as I found this morning, has a copy of the special edition of the Observer of last Thursday.
Lord Young of Graffham: My Lords, first, I should say to the noble Lord, Lord Williams of Elvel, that I refute utterly his suggestion that I am hiding behind the proceedings of your Lordships' House. There is nothing I have said in my statement that I would be afraid of repeating outside. Indeed, there is nothing I have said that has not been said in public comment elsewhere.
Secondly, I am afraid the noble Lord misses the essential point of what I have said. What is at stake here is the whole principle of English common law—the right of an individual to a free trial. The Swiss, the Germans, the French and the Dutch may read all about the report in full measure, if their minds so take them. But the essential single point is that we should be able to find, in the fullness of time, an English jury who can consider the matter and give—if anyone should be charged—a fair trial. It is that which is at stake, and not the prurient satisfaction of those in the press.
Lord Ezra: My Lords, I too from these Benches wish to express appreciation to the noble Lord for the considered statement which he gave in response to this Question. However, I wish to ask him three short questions. First of all, the noble Lord said that the legal proceedings presently in train would be prejudiced if there were early publication. However, the knowledge of the contents of this report is now so widely spread that it is difficult to see how, if there is to be prejudice, that prejudice has not already been created. Would it not therefore be much simpler to publish the report so that all could see it in a proper manner, rather than clandestinely as at present?
Secondly, is the noble Lord aware that there is a degree of public concern about the cost of legal proceedings incurred by the Government in trying to prevent publication of documents which are already widely known? This of course is not the first instance of that, and I shall not refer to the previous one. I merely say there is concern that a fairly lavish

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expenditure of money is being incurred to try to prevent something which has already occurred anyway. Perhaps the noble Lord can give some indication of the cost of these proceedings.
Thirdly, this clearly would not have happened if the legal proceedings to which the noble Lord referred had been quicker. This is not the only case subject to legal proceedings of this kind. It is a matter of surprise to those who are at any rate lay members of the public and not involved in the legal profession, or that part of it which is involved in these matters, that these proceedings should take so long. If the proceedings had been completed earlier, we could have had publication of the report and the recommendations of those who looked into these matters, and this situation would not have arisen.
Lord Young of Graffham: My Lords, I am grateful to the noble Lord, Lord Ezra, for his comments. I decided not to publish the report, and the Government resisted publication of the report not so much to impede present legal proceedings but rather because it would impede the prosecuting authorities in the discharge of their duties when they decide whether or not to bring criminal proceedings.
This is not my decision. Happily, we have a system of government in this country in which I am separated from those who decide whether or not prosecutions should be brought. That is the way it should and must be. It is a matter solely for the judgment of the Serious Fraud Office or the Director of Public Prosecutions whether or not to bring proceedings. The length of time involved, again, is a matter for them. Although I believe the Attorney-General has asked them to expedite the matter, they must be sure that the standard of proof they have will stand up in a criminal court and not merely be sufficient—should there be any evidence of wrongdoing—for a report by inspectors from my department.
The noble Lord, Lord Ezra, mentioned the cost of legal proceedings. There have been two sets of legal proceedings. First, a judicial review was brought by Lonrho. That is a matter in which I have had to appear in aid, although I did not instigate it. That is not a matter for the Government.
Secondly, I wish to refer to an injunction we took on Thursday morning to stop publication by the Observer. That could hardly be called expensive. We do not intend to go round the world stopping publication. As I said to the noble Lord, Lord Williams of Elvel, we simply wish to ensure that, should the occasion arise, there is a jury to hear this matter.
Lord Orr-Ewing: My Lords, when the Observer was taken over by Lonrho was it not a condition of that takeover that independent directors should be nominated? Were those independent directors consulted before this special edition was published, and if not, why not? Can my noble friend say whether as a result of this report it has been possible to include in the Companies Bill currently going through this House some of the points which arose?
Lord Young of Graffham: My Lords, in 1981 when the Observer changed hands it was part of the arrangements of that time that there be five independent directors whose job it was to ensure that the editor had total independence from the proprietor. It was quite properly thought at the time—this is absolutely right—that that independence should not be a matter for government. Indeed, when the day comes that a government have a say in the independence or otherwise of newspapers it will be a very sorry day indeed for all of us.
I read in the newspapers that one of the independent directors said that the first he knew of this special edition was when he heard about it on the radio. That is a matter for the independent directors and not for me.
As regards the other part of my noble friend's question, I believe we are now satisfied that any lessons to come out of this report will be covered in the present proceedings going through your Lordships' House.
Lord Mishcon: My Lords, while I am in no way expressing one word of sympathy with the action of the Observer, or Mr. Rowland or anybody connected with him, will the Minister confirm whether I am right or wrong in saying that the variation of this morning made by the High Court with regard to the injunction on publication, which favoured the Minister, was that any detail of the report could be reported by the press if it was spoken of in Parliament? If that is the case, is it not: correct that if I cared to read passages from the report—I have no intention of doing so—the report would be released? I cannot speak for the responsibility of other Members of your Lordships' House or of anyone in another place tomorrow.
My first question is: if my knowledge of the variation is right, is it not an absurdity for the report not to be published? My second short question is this: is it not a pity that when the Secretary of State received a report in July 1988 and immediately saw that it was suitable subject matter for the Serious Fraud Office, no decision from the Serious Fraud Office has been reached by April 1989?
Lord Young of Graffham: My Lords, the noble Lord, Lord Mishcon, is quite correct. Any Member of your Lordships' House who cared to stand and read all 752 pages of the report to your Lordships might find that the House would perhaps become slightly short-tempered. That is not the question. It is true that if parts of the report are read in this House they can be issued because proceedings of your Lordships' House must stand inviolate.
So far as concerns the noble Lord's second point, it is very much a matter for the prosecuting authorities. I received the report on 23rd July last year. I sent it to the prosecuting authorities on 26th July. Since that time the report has been with the authorities and it is a matter for them to decide. The standard of proof is very different in a criminal matter than it is in a Department of Trade inspector's report, as the noble Lord, Lord Mishcon, knows better than I. It is a matter which only the prosecuting authorities can judge.
Lord Hailsham of Saint Marylebone: My Lords, perhaps I may ask the noble Lord the Leader of the House whether, if any Member of this House were to be so irresponsible as to publish that which would prejudice a fair trial, it would be open to me or any other Member of the House to move that the noble Lord be no longer heard?
The Lord Privy Seal (Lord Belstead): My Lords, it is always open to the noble and learned Lord to move that particular Motion. However, I hope that on this occasion he will not.
Lord Taylor of Gryfe: My Lords, from these Benches we should like to thank the Minister for his very firm statement this afternoon. We welcome also his assurance that he will publish the report as soon as possible and we accept that that is a matter of judgment in which he will be guided by the law officers. We understand his problem and his dilemma.
We also welcome the assurance that some of the matters that have arisen from the proceedings will be taken care of in the Companies Act and in the City code since it is obvious that the same disciplines relating to the details which have to be submitted when making an offer for a company do not apply to non-corporate bidders as to corporate bidders. It would be useful if, as a result of these proceedings and the experience of the past few weeks, some aspects of the City code and of the Companies Act were to be amended to avoid a recurrence of the problems.
I presume that within the noble Lord's department there is someone who looks at the whole question of abuse of press power. There is no doubt that press independence has been seriously prejudiced by the activities of the owner of at least two newspapers, the Observer and the Glasgow Herald.
Perhaps I may make one final point, which has already been raised, about the delay in dealing with these matters in the Serious Fraud Office and in his department. I declare an interest in this regard. About two and a half years ago inspectors from the DTI entered the office of a reputable merchant bank. They are still considering and pursuing their investigations. In the meantime the reputation of individuals, as well as the standing of the financial institution concerned, is seriously affected by inquiries that have taken two and a half years to emerge. Perhaps I may ask the Minister, in view of the implications of the inquiries, whether he can give some assurance that there will be more expeditious action not only in the case to which I have referred but in general in such matters, so that companies and individuals affected by such investigations may be protected.
Lord Young of Graffham: My Lords, I am very grateful to the noble Lord. There is a difficulty. There is a great desire to ensure that the lessons to be learnt from reports such as this should be passed on in order that the behaviour of the market can be moderated. They are important matters which often affect the behaviour of institutions. They are matters in respect of which I suspect that parties concerned
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have long since learnt the lesson and so moderated their behaviour.
On the other hand the rights of individuals are affected and there is a difficult balance to be maintained. Nevertheless I shall bear in mind what the noble Lord has said and I hope very much that the procedure can be streamlined as much as other procedures have been streamlined.
Lord Cledwyn of Penrhos: My Lords, is the noble Lord aware that the undoubted confusion which has developed over this case has been greatly exacerbated by the delay since the report was delivered to him in July last year? Can he tell the House when the report was transferred to the Serious Fraud Office? Was it transferred immediately?
Secondly, as he declines to publish the report now, can he say more precisely when he thinks that he will be able to publish the report? As he said the report is now in the hands of the Serious Fraud Office, it is in the hands of the Director of Public Prosecutions and it is also being considered by the law officers of the Crown. Is he now saying to the House that he will publish immediately he hears from the Serious Fraud Office?
Furthermore, and lastly, will he assure the House that when he receives the report from the Serious Fraud Office he will make a further statement to the House?
Lord Young of Graffham: My Lords, I can tell the noble Lord the Leader of the Opposition that I received the report on 23rd July and I sent it to the prosecuting authorities on 26th July. I think that that was sufficiently immediate action.
I checked only on Friday of last week whether I could yet publish the report. The advice from the prosecuting authorities was that I cannot. They told me that if I did so it would stop them taking any further action. As I said in my statement, it is my dearest wish to publish the report so that all can see it. I shall do so the day I am told by the prosecuting authorities that they no longer wish me not to publish. I cannot wait for that day to arrive.
The Earl of Halsbury: My Lords, will it comfort the noble Lord to know that I could not care less which of two takeover manipulators has outmanoeuvred the other? So far as concerns publication, I shall await the noble Lord's convenience with that patience which is said to be one of the cardinal virtues. That patience is being overstrained not by delay in publication but by the fact that we have taken 27 minutes on this subject.
Lord Mason of Barnsley: My Lords, the fact is that the report has been leaked and is in the hands of the Observer which has published most of it. The tide of opinion is running against the Al Fayed group—"exposed, the phoney Pharoah". The matter will be aired further and that tide of opinion will put the Al Fayed group in the dock until the noble Lord publishes the report. Would it not therefore be better for all the parties concerned for the report to be published now in order to neutralise what may be a false opinion which is running wild?
Lord Young of Graffham: My Lords, I very much regret that Lonrho or the Observer, or both, decided to post copies of the report to all Members of your Lordships' House and I believe to all Members of another place and a large number of opinion-formers in the country. However, I am happy to say that I am advised that the circulation of the special supplement of the Observer was not such as to prevent there being a jury able in the event to form a fair and clear view of any trial proceedings. That must be the only test. We have injunctions today to stop the Observer publishing the report in the future. We should rest content at this point. I should love to publish the report. I cannot do so and I await the day when I am told that I can.
Lord Bruce-Gardyne: My Lords, first, I declare an interest as a scribbler in a rival publication. I want to follow up the question of my noble friend Lord Orr-Ewing. As my noble friend pointed out, and as my noble friend responded, undertakings were given by Lonrho at the time of the acquisition. Is it not hard to see how those undertakings square with the activities of a collective gentleman whom one might describe as Sir Edward du Trelford? If that is the case, what happens? Does the Monopolies and Mergers Commission call in of its own momentum the directors of Lonrho, including the independent directors, and adjudicate upon the case again? Does my noble friend have to refer it again to the Monopolies Commission? Does the Monopolies Commission have no remit in those circumstances?
Having said that, I also ask my noble friend whether he will recognise that those of us on this side who are not lawyers and are perhaps scribblers find it a little hard to understand the circumstances that continue to prevent publication. I fear that we are bound to wonder not about my noble friend's motives and reasons—for me, and I am sure for all other Members of the House, those are completely beyond question—but about that famous national monument, Sir Humphrey's face. Can we be sure that there is no element of protection of Sir Humphrey's face in the continuing decision not to publish?
Lord Young of Graffham: My Lords, there could be little doubt that the easiest road for me to take would be to publish the report. That would immediately take me out of the firing line, but I must tell noble Lords that that would be wrong. I am advised by the prosecuting authorities that I could not, should not and must not publish the report. When the report is published, noble lords will judge whether I am protecting the Government or the department. As I should not comment on the contents of the report, all I can say is that my conscience has never been clearer on any matter than it is on this one.
Lord Bruce-Gardyne: My Lords, perhaps my noble friend will answer my first question, following on from that of my noble friend Lord Orr-Ewing, about the position of the Monopolies Commission.
Lord Young of Graffham: My Lords, I think that it would be a sorry day when Ministers started to question the independence or otherwise of
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newspapers. That would set a precedent which could lead on to rather difficult territory. It may well be that the Monopolies Commission, of its own volition, has a locus in this matter and that the Director General of the Office of Fair Trading has a position in it, but it is not for me to say and it is not a matter that I intend to do anything about.
Lord Mayhew: My Lords, is it not time that proposals were brought forward to loosen the control over our newspapers and television of the two or three thoroughly unsuitable persons who exercise it at present?
Lord Young of Graffham: My Lords, perhaps the noble lord knows who those people are, but I cannot recognise them.

Business
Lord Denham: My Lords, it may be for the convenience of the House if I announced that the Committee stage of the Official Secrets Bill will be adjourned at approximately 7 p.m. for approximately one hour and that during this adjournment the Second Reading of the City of London (Spitalfields Market) Bill will be taken.

Official Secrets Bill
3.32 p.m.
The Minister of State, Home Office (Earl Ferrers): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [Security and intelligence]:
Lord Jenkins of Hillhead Lord Jenkins of Hillhead moved Amendment No.1:
Page 1, line 5, at beginning insert ("Subject to the provisions of section (public interest defence) below,")
The noble Lord said: This amendment, which stands in my name and those of three other noble Lords, leads via nine other paving amendments—Amendments Nos. 3, 11, 15, 20, 27,28, 30, 32 and 36—to the substantive new clause which provides for the public interest defence. It is therefore a major amendment and one of the three that I and others suggested on Second Reading were necessary if the Bill were to live up to the reiterated claim of the Home Secretary that it should be a liberalising measure. Of the three amendments, it is perhaps the one of greatest single importance.
An analogous series of amendments was debated in the House of Commons for seven hours two months ago. That debate produced only five speeches, out of a total of 24, that were in favour of the Government—two of those five speeches were made by the Home Secretary himself—and led to

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18 Conservatives voting in the Opposition Lobby. That was a substantial vote, given the heroic standards of whipping that are currently applied in—if I may so describe it after a span of 39 years in the other place—that somewhat rubber stamping Chamber.
The current reputation of this Chamber is certainly not one of rubber stamping. There was widespread expectation in the Commons that this Chamber would have something to say about this aspect of the matter. However, these amendments are not exactly the same as those put forward in the Commons. They have been narrowed in three respects so as to meet objections put forward by Ministers and to make the amendments even more manifestly acceptable to any government who are not simply wedded to the superior wisdom of their own draft in any circumstances and are consequently determined to make a mockery of a deliberative Committee stage.
The three differences are, first, that, under our amendments, the defendant can deploy the public good defence only if he can show that misconduct existed. "Reasonable cause to believe it existed," in contrast with the Commons amendment, is no longer enough.
Secondly, for the purposes of such a defence, misconduct is restricted to crime, fraud, abuse of authority or neglect in the performance of official duty. The possibly vague phrase "or other misconduct" has been removed. That provision is to make it doubly clear that a defence is not being provided for an official who discloses because he profoundly disagrees with the propriety of a policy decision. Thirdly, it is here made explicit that it is not enough to show that some public interest has been served. If some harm has also occurred, the one has to be weighed against the other, and, for the defence to be effective, the benefit must be clearly greater than the harm.
The effect of the amendments is therefore restricted, but it is nonetheless vital. Without them, even the most beneficial disclosure of the most blatant wrongdoing would be without a statutory defence. Without the amendments, in cases where the Bill provides for absolute offences—anything in relation to the security services or telephone tapping—there would be no need even for the prosecution to show that there was any resultant harm to weigh in the balance against the disclosure of manifest misconduct. In other areas where the absolute offence does not apply, an offence would be committed if very limited harm was shown even though the public benefit were clearly much greater.
In my view, the circumstances in which such a defence would be necessary and valuable would be if—this was an example cited in the Commons—major corruption in an ordnance depot were exposed. As a result, there would no doubt be some temporary disruption to the work of the ordnance depot, but, in the medium or long term, there would be much greater benefit from the exposure of those highly undesirable practices. Secondly, it might be used in circumstances in which, say, an infectious
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disease were being imported by a ship or aircraft, and this knowledge was being suppressed either in the interest of not causing panic or in the commercial interests of the airline or ship, and clearly the harm could be very great indeed. It may be argued—I believe that it was argued by the Home Secretary in the other Chamber—that in those circumstances a jury would probably never convict; in other words, the jury would assume that the law ought to be such as we are trying to make it today, even though the Government have refused to accept our proposals.
I do not know what view a jury would take in such circumstances. Sometimes juries can act unpredictably and can go one way or the other. However, I cannot believe that it is either rational or good law for the Government to argue that juries will go against the letter of the law, because the letter of the law as the Government insist on having it is so manifestly contrary to both good sense and natural justice.
It also appears to be the case that to proceed with the Bill without this "any public interest" defence is a retreat from one of the few desirable aspects of the Act of 1911, of which Section 2(1)(a)—in the interests of the state (where this is rather differentiated from the interests of the government of the day)—has constituted a basis for a number of successful public interest defences. The Home Secretary tries to argue that such a defence is not provided in the Act of 1911, but he does not seem to have been significantly successful in persuading anybody else of that point. I have considerable regard and respect for the right honourable gentleman the Home Secretary; but it appears to me that the great weakness of his position on this Bill is that at one and the same time he is committed to presenting himself as the father of a great liberalising measure and to assuring the mother of the Bill that it is one which would have produced different results in the Ponting and Spycatcher cases. The two horses are not very easy to ride together. I am not surprised that it sometimes makes him fretful and unconvincing.
There is nothing alien to the law about a public interest concept. Indeed it is explicitly present in the original Act of 1889—more explicitly than in the Act of 1911. On 3rd June of that year the Attorney-General of the day, with admirable succinctness—in about four lines—moved an amendment, the object of which he briefly said was to limit the application of the clause to cases where the publication is contrary to the interests of the state or any department of the Government, or otherwise contrary to the public interest. That same phrase is enshrined in the original Official Secrets Act of 1889.
That defence is also of course specifically provided for in the Obscene Publications Act of 1959, for which I had considerable responsibility. The Home Secretary became embroiled with both Mr. Heath and Sir Ian Gilmour in the other place by dismissing this Act as universally thought to be unsatisfactory. So indeed it is in some ways; but its unsatisfactory nature stems from the inevitable vagueness of the concept "likely to deprave or corrupt" and not from the public interest defence. Were the Act to be stripped of that defence, it would put us back to having one of the most obscurantist literary

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censorship laws in the world. As all governments of differing parties have had 30 years in which to improve that Act without any of them succeeding in doing so, it hardly lies in anyone's mouth to talk too dismissively about its imperfections.
As I understand it, a great part of the Government's case rests upon the belief that, particularly with the new and fortified procedure, all practical problems for any public servant can be dealt with by taking up the matter within the established hierarchy. That ignores the fact that a public interest defence may in some cases be necessary and desirable for a journalist or indeed for a private citizen. But beyond that, in my view it is not always sufficient within the public service to say that the established hierarchy can and should deal with a possible problem. There are many examples in our history and that of other roughly comparable countries where only the uncomfortable searchlight of public exposure has brought an abuse to an end by bringing it into the open.
There are great internal pressures, many of them stemming from the highly virtuous quality of loyalty—a desire not to expose—within the hierarchical structure. That can apply to officials of great probity. I have the highest possible view of the traditions of the British Civil Service. In some ways possibly I hold a higher view than is fashionable within some circles of government at the present time. Indeed, I ventured to initiate a debate in this Chamber in January which in part turned on my view of the exceptional quality of the diplomatic service. I have been lucky enough to have been brilliantly served by members of both that service and the home Civil Service; three of the latter have indeed since become Members of this Chamber. I never found their advice on policy to be other than well motivated, and I have rarely found it to be other than right.
However, the one area in which I believe that politicians know better than officials is that of understanding when it is desirable to let the light of an informed public opinion shine into dark places. In my view the one deficiency of our Civil Service training and ethos is that the service is too steeped in the British tradition of never telling the public anything that they do not have to be told, and leaving them to find out (as has been too often the case) by partial leaks rather than by proper disclosure. I therefore do not regard any wholly internal procedure as a satisfactory ultimate safeguard for the public interest.
I make two points in conclusion. First, it is not as though the British practice of attempted secrecy has worked well. We have not only had more than our fair share of spies; we have had more than our fair share of government and commercial leaks as well. Secondly, this is in some ways a brave Bill. It is trying to grasp a nettle which no other government have grasped for 78 years. The legislation may last as long. I believe that it will certainly last for some considerable time. It will have to be applied by many different administrations. It is pre-eminently the kind of measure which ought to have all-Party
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support. If the Government could accept this, and one or two other amendments, they would be very near to having all-Party support. Were that to happen it would be good for the Bill, good for our legislative process, and for the balance of our political system. I beg to move.
3.45 p.m.
Lord Home of the Hirsel: In past years, before this Bill was published, I have been sometimes attracted to the idea that in the context in which we are speaking there should be a reference to the public interest. However, if there is a principle in this matter it is surely that when Parliament legislates and applies the criminal law, that law should be made as precise in its terms as possible.
During the Second Reading debate I said that I could support the Bill for precisely this reason. For the first time a definition has been given by any Home Secretary of six areas in which the criminal law should continue to apply. That definition is a great improvement on anything that has gone before. Whatever may be said about the public interest, it is certainly not precise. There are a number of interpretations given to it. It would be extremely difficult for a jury to make up its mind on that matter. Therefore while I understand the anxieties of the noble Lord, Lord Jenkins of Hillhead, nevertheless I hope that the Committee will decide, if it comes to a Division, that the Bill as drafted should remain as it is. It is very important that the criminal law should be absolutely precise in its terms.
Lord Pym: All the controversy surrounding the Official Secrets Act over the last decades, and in particular over recent years, is surely evidence enough of the difficulty of legislating in this area. There is no ideal way of doing so, let alone a perfect one. There is a conflict of interest between the Government, the press and the media, and the public interest. In my view—and I share the views of the noble Lord, Lord Home,—the Bill succeeds in making as clear as possible what the Government believe is in the public interest for the protection of official information. It sets out specifically the categories of activities where disclosure of information would damage the public interest: the work of the security services; the capability of our armed forces; the nation's interests overseas; the fight against crime, and so forth. It is all set out in the early clauses.
I do not think that anyone seriously questions that disclosure in these areas could be very damaging and must therefore be prevented. When a case under this Bill is brought before a court the jury will have to decide whether or not the appropriate test of public interest has been met. The requirements seem to me to be as clear as they can be.
This new clause seeks to add a new and different concept to the Bill—and I think a dangerous one. It is one that does not exist at present. It is that some individual's personal view of a particular matter, and its handling, by definition a very different view from that of Ministers and other officials, is enough to justify disclosure. It would be an exaggeration to describe it as a licence to leak, but there is the flavour of that about it. And on what basis? On the basis

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that the individual making the disclosure thought that there had been some misconduct by abuse of authority or neglect of duty or whatever, and that the damage to the national interest would be outweighed by the supposed benefit of the disclosure.
Lord Jenkins of Hillhead: I hesitate to interrupt the noble Lord, However, I specifically said that this amendment differs in three ways from the Commons amendment. It is not enough for the individual to think that there may have been misconduct. Misconduct has to be shown to have existed. It cannot be a matter of opinion. It has to be a matter of reality.
Lord Pym: It has to be established. Somebody might take the view that there was an act of misconduct; and he might not be right about that. That is my feeling about this clause.
These issues tend to be highly prone to subjective opinions and judgments. A person might think that disclosure would be in the public interest, that some abuses of authority or neglect of duty had occurred, and that person might be entirely honest and genuine, yet misguided When someone worries about a matter such as this on his own, perhaps for days on end, his judgment almost always turns out to be faulty.
I do not think it can be right for this Bill to contain a clause that enables an individual acting on his own opinion alone to think that he might be justified in making a disclosure that could inflict damage. That damage will have been done already by the act of disclosure. It may be a slight measure of damage or a very serious one. Either way, it cannot be undone. Even if improper disclosure brought some public benefit—and it is not easy in these circumstances to imagine what it might be—that would be as of nothing compared with the damage, or potential damage, that disclosure could inflict, and it is damage that we want to prevent.
I find this new clause unacceptable. Some people have argued that such a clause would bring a balance into the Bill— balance to make disclosure easier. In my view it would produce an imbalance—it would make our national security harder to achieve. In this Bill what we are dealing with, and what many of us are most concerned about, is nothing less than one aspect of the nation's security. Some people who have never had responsibility in this field sometimes fail to realise what an onerous responsibility it is. I have never been Home Secretary. I know that the noble Lord, Lord Jenkins of Hillhead, has held that office twice. This new clause is certainly in keeping with the liberal measures that he introduced then, with results that have been controversial to say the least—but that is by the way. I have not been Home Secretary but I have been Secretary of State in three departments where security was a major responsibility and a priority. I would be entirely content to shoulder those responsibilities with this Bill on the statute book, but not with this new clause.
Superficially it looks reasonable. It certainly sounded very reasonable as put by the noble Lord.
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However, if one looks behind the new clause, it contains features that could be used to create great difficulties in the security field, mischievously, subversively or simply wrong-headedly. Some ill-intentioned people might see it almost as an invitation to make a disclosure. It adds nothing to the security of our country but makes our security more vulnerable. I think that we would be wise to keep our minds on this central objective: the security of the country. Without that we have nothing much and my conviction is that this new clause detracts from that security. I hope that the Committee will reject it.
4 p.m.
Lord Hatch of Lusby: The noble Lord, Lord Pym, has illustrated the necessity for this amendment. As I said during the Second Reading debate, there is a difference between the interest of the public and the interest of the Government. The noble Lord, Lord Pym, appears to have been saying that the Government and Ministers are always right: that civil servants are always right in their judgment, whatever fraud, mistakes and misdemeanours they may perpetrate. It seems to me that what the noble Lord, Lord Pym, was saying reflected directly from the introduction to this amendment by the noble Lord, Lord Jenkins of Hillhead. If the judge in the Ponting case had been followed by the jury—the judge virtually said that the interests of the public and the interests of the Government are synonymous—many of the speeches that have been made on this Bill in both Houses would not have been made. We are entitled to know.
Members of the Government have referred to "perverse" juries. Which was the perverse jury? Was it the jury in the Ponting case? Was Clive Ponting right to consider that it was necessary in the public interest for him to reveal what had gone on in his department? The jury found that he was.
If the Bill were to stand without amendment Clive Ponting would now be in prison because the judge would have so directed. He did not direct; he summed up. Under the Bill he would have directed the jury. Right back in 1957 at the time of the Windscale fire and accident certain revelations were made. Was it right that the public should know or was it right that the government should cover up, lest there be fear of nuclear energy? Was it right for smears to be made against members of the Wilson government? Some noble Lords will remember the speech made by the noble Baroness, Lady Hart of South Lanark, who testified personally that she knew from her own experience in government that some of the accusations that were made and the smears made against members of the Wilson government had been carried out. Is it right that under the Bill civil servants should be forbidden to reveal that? Was it right that a civil servant should be charged for having revealed that the telephone lines of members of the CND were being tapped? Was it right that Cathy Massiter and Sarah Tisdall should make their revelations? Was that in the public interest? It certainly was not in the interests of the government of the day.

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During the Second Reading debate I asked the noble Earl to answer a question, which he did not answer in his summing up. I referred him to the film "Scandal" and particularly to the programme that was shown on Channel 4 the week before the premier of "Scandal". It was stated in that programme—I am not saying whether it was correct or incorrect; I asked the noble Earl whether it was correct or incorrect—that, although at the inquiry before the noble and learned Lord, Lord Denning, the head of MI5 denied that Stephen Ward was employed by or was an agent of MI5, later it was admitted that Lord Denning had been told a lie. Under the Bill as drafted that lie would not have been able to be corrected. Almost certainly as a result of that lie Stephen Ward died.
Is the Committee saying that in all circumstances, whatever a civil servant, member of the intelligence service or member of the security services finds out in the course of his duty, he is to be prohibited from making that public? If that is so, what is the position of Miss Bowe? What is the position of those who leaked that letter during the Westland affair? What would it be under the Bill? We are suggesting that there is a public interest and that that issue of public interest has been recognised in many other countries without any danger to their security. The Government appear to be obsessed with secrecy. Although it has been shown in many other countries that the public interest defence can be included and that freedom of information Acts can be passed without any danger to security, in this country we retain that secrecy. Apparently we do not trust the public. What is more, apparently we do not trust the jury.
I say to the noble Lord, Lord Pym, that surely the question of public interest is not a matter that should rest either with the supremos in the Civil Service or with Ministers. The right place for the interests of the public to rest is with the jury. The jury showed in the Ponting trial a greater degree of concern for public interest than did either the judge or the Government. We, and those who support the amendment—and probably all those who are wedded to our concept of common law and the jury system—believe that the tribunal, the forum that should decide these matters, is not the Minister or the civil servant, but the 12 men and women who are selected to judge on behalf of the public.
Lord Boyd-Carpenter: The noble Lord, Lord Hatch, suggested that some of us on this side of the House thought that Ministers were always right. Let me assure him, as one who has served in one House of Parliament or another since the war, that I know very many examples to the contrary, though I shall spare the blushes of certain noble Lords by refusing to enumerate them. There is one thing about Ministers which is unique and separates them while they are Ministers from their fellow citizens. Ministers, particularly senior Ministers of the Crown, have a direct responsibility for the safety of the realm. They have a very special responsibility, as my noble friend Lord Pym put it so well a few moments ago. There is great danger in trying to wean away, to whittle away, that responsibility which properly falls on Ministers and Ministers only.
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As I listened to the noble Lord, Lord Hatch, I thought he seemed to be hardly in the real world. It is utterly unrealistic to ignore the fact that we live in an age where widespread, deliberate, well-financed espionage is being carried out by major countries, many of them aiming it at this country. It is utterly unrealistic to ignore that. There are many powerful, well-financed organisations seeking to discover secrets—particularly those relevant to the finance, defence and security of this country—in order to damage this country.
It is not a question of being alarmist and speaking of "spies under the bed". One has only to see what is happening in the world. There is an occasional case—the small example which breaks the surface —of a spy who is arrested or a diplomat who is told to go home because he has been behaving like a spy. That is the reality of the modern world and one cannot get away from it—
Lord Hatch of Lusby: Will the noble Lord give way?
Lord Boyd-Carpenter: Yes, of course.
Lord Hatch of Lusby: I am obliged. Will the noble Lord tell the Committee why the principles that he is now enunciating apply to this country but not to others which are also in the real world and which show more concern for public interest than is allowed for in the Bill? He will know of the countries to which I refer, some of which are in the Commonwealth. They are in the real world and are subject to the same pressures. Why can they be liberal but we must be secret?
Lord Boyd-Carpenter: I do not propose to enter into a discussion of the arrangements in other countries. We are now concerned with the proper arrangements which are to be made here. It is more than possible that some of the countries which he has in mind are being extremely unwise and are endangering their security.
There also exists the fact, which the noble Lord appears not to have in mind, that this country—as the central point of the European alliance and one of the major countries in the Western world—is one of the main targets of Russian espionage and attempts to discover our secrets. Some of the countries to which he has referred are not in that position, perhaps happily for them.
I beg the noble Lord to concentrate his mind not on what is done by other countries—wisely or unwisely, rightly or wrongly—but on the question with which we are now concerned: what is it right for this country to do? One then comes to the question of who should decide what is to be published in the public interest.
In general, and leaving aside security matters, I yield to no one in my admiration for the machinery of judge and jury. But, in assessing whether a particular matter which has been secret should be allowed to continue to be so, a jury and, with great respect, an ordinary judge are not in as good a position to form an informed opinion as are Ministers of the Crown who are in touch with the security services and able to read their secret reports.

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As regards security issues, what is in the public interest is not a matter for judges of the High Court (I say that with the greatest respect) or members of juries because they do not have the background knowledge to form a realistic opinion. The only people in a position to do so are Ministers of the Crown, although they may have imperfections and limitations.
I should like to recall to the Committee a matter which I mentioned briefly in our debates on the Security Service Bill. One of the great successes of British security occurred during the time of the Attlee Government. Quite rightly and patriotically they decided to manufacture a British nuclear bomb. They succeeded in concealing that fact from everyone, including Parliament, which was absolutely right.
Let us apply the approach of the amendment to that situation. How do the noble Lord, Lord Hatch, and members of the Committee believe that a judge and jury would have addressed themselves to someone who sought to disclose the fact that a British nuclear bomb was being manufactured? It would be easy to say that it was a matter of the gravest importance—which it was—that it was a matter of enormous relevance to the future safety of this country and, therefore, it must be in the public interest that the public must be aware of it. With all respect, that would have been a nonsense. The determination of the Attlee Government, not only to manufacture the bomb but to keep quiet about it until it had been completed and ready for use if necessary, has greatly contributed to the strength of this country in the troubles of recent years. Indeed, it has contributed substantially to the peace of the world. I am glad to have the opportunity of paying tribute to Mr. Attlee—Earl Attlee, as he later became—for a fine display of good judgment and patriotism. But it is a good test—
Lord Hutchinson of Lullington: Will the noble Lord give way?
Lord Boyd-Carpenter: I am sorry. Let us suppose that something of that kind were happening now. Who believes that a judge and jury are competent to form a view on the immensely important and difficult question of whether it would be in the public interest that such an issue should be disclosed? Now I shall certainly give way to the noble Lord.
Lord Hutchinson of Lullington: I am obliged. What the noble Lord has said about Mr. Attlee and the bomb has absolutely nothing to do with the amendment now before the Committee. The amendment covers the revelation of crime, fraud, abuse of authority and neglect of the performance of official duties. With the greatest respect, it has nothing whatever to do with a view about disclosing the possession of a bomb.
Lord Boyd-Carpenter: I suppose that the noble Lord is entitled to that belief, however fantastic. If one could find anything more relevant to a charge of abuse of authority or neglect of duty than the question of this country's manufacture of nuclear
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weapons, his intervention would have some point. With great respect to the noble Lord, his intervention is absolute nonsense, although interesting and illuminating nonsense. It indicates the extraordinary, unreal world in which he and those who think alike apparently exist.
It was a matter for decision by a British government, a decision which undoubtedly would and could have been criticised by all kinds of people including, no doubt, the noble Lord. It would have been alleged that it was a neglect of duty and an abuse of authority. It is obvious that if the facts had been disclosed the history of this country and the free world would have been different and less good than it has been.
Therefore we return to the question of who is to decide whether it is in the public interest for a matter of importance which has been secret to be published. Is it to be decided by a judge and jury or is it to be decided by responsible Ministers of the Crown? I am quite clear that it should be the latter.
Lord Elwyn-Jones: In the submission of Members on this side of the Committee this Official Secrets Bill will achieve far greater public support and acceptability if the amendment which we are now discussing is carried. Perhaps it is as well that we should remind ourselves of the terms of the amendment before we get into waters with which it is not in any way related. The amendment makes it a defence for a person charged with an offence under this Bill to prove, not to suspect, in the case of a trial, to the satisfaction of the jury that the information, document or other article in question reveals the existence of crime, fraud, abuse of authority or neglect in the performance of official duty. There then follows the strict limitations of the misconduct contemplated. That is what needs to be proved. A person who wrongly suspects that kind of misconduct would not have the beginning of a defence.
In order to indicate a further safeguard in the language of Amendment No. 38 subsection (1)(b) provides:
"in the circumstances the disclosure was in the public interest having regard both to any benefit and to any damage that resulted or was likely to result from it".
Therefore the court will have to and will be invited to address its mind expressly also to that issue.
The amendment does not apply itself to matters of policy. It cannot be invoked by someone who believes that the policy of the Government is misguided, for example, with reference to nuclear armament, to the point of being contrary to the public interest. That would not be open as a defence under the terms of the amendment.
Then, as I said, it would not be enough merely to prove that the misconduct alleged existed and was serious. The defendant would have to show further in his defence that in the circumstances benefit from revealing the information outweighed any possible harm. Therefore, that is a very circumscribed defence and our submission is that the public interest defence, which we think is essential in this Official Secrets Bill, is not a loophole but a safety net. The jury would remain open to a prosecution argument

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that more harm than good was done by the exposure complained of or indeed that no good resulted at all.
Without the presence of a public interest defence in the Bill the jury would never be able to begin to weigh whether or not on balance a defendant's unauthorised disclosure benefited or harmed the public interest. The jury will not be invited to consider the public interest at all if this Bill becomes law as it stands.
As has been said, the defence of public interest is already well established in our law and, in particular, in the civil law of confidence. At common law a person who accepts information knowing it to be given in confidence is under an obligation to retain and respect its confidentiality. If necessary, the courts will enforce that obligation. However, the courts have refused to enforce such an obligation—and indeed they hold that the obligation does not exist—where the information relates to serious wrongdoing. That is the basis of the public interest defence, often called iniquity defence, under the law of confidence. That is well established and well known in our law.
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".
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".
Equally it is to expose serious misconduct in the conduct of government. The public interest defence will enable serious misconduct to be exposed but without it, in my submission, important areas of public administration will be beyond the power of both Parliament and the press.
There is a further matter to which the attention of those who respect the authority of the European Convention on Human Rights should be drawn. If a public interest defence were provided in the Bill, the critieria of the European Court of Human Rights will be more likely to be satisfied than if it is not included.
Article 10 of the convention gives rise to the basic view that freedom of expression is the very heart and soul of a free society. Article 10, which is, of course, binding upon this country, expressly provides that freedom of expression. Any restrictions imposed on that right of freedom of expression must be rigorously examined to ensure that they satisfy the conditions on which, according to Article 10, limitations on freedom of expression are permitted. Those conditions of that convention require that any limitation should be necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for
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maintaining the authority and impartiality of the judiciary.
A limitation has been deemed only to be necessary. according to the European Court on Human Rights in Strasbourg in the Handyside case and the Sunday Times case, which incidentally are both binding on the United Kingdom, if it serves a legitimate aim and seeks to meet a pressing social need and is proportional to that need.
In our submission, what we propose, by the introduction of a public interest defence, will enable us to survive what will or could otherwise be yet another defeat at the court in Strasbourg—and we have had too many of them. That is something which we should weigh in the balance. If the Bill makes no provision for a public interest defence, if the benefit to the public in the disclosure of information is found and thought to outweigh the benefit to be derived from the public by its suppression, then unless we provide some sort of protection of that sort, we may well find ourselves in very great difficulty when these matters come before the court. Therefore, in the circumstances this restrictive but clearly established defence in law should become part of a Bill which would otherwise be accepted with suspicion and doubt by the public in this country.
4.30 p.m.
Lord Renton: The noble and learned Lord has, as always, put his case before us with persuasion and clarity but I confess that I am not convinced by his arguments. Indeed, I feel that they contain, as did the arguments of the noble Lord, Lord Jenkins, several fallacies of which the Committee may wish to take note.
First, I refer to the analogy between the public interest, and the matters with which we are concerned in this Bill, and the common law defence of public interest in matters of confidence. That is not a proper analogy to make in these circumstances. Surely there is a wide gap and a big difference in principle between confidence in private relations, professional relations and commercial relations, on the one hand, and, on the other, the confidence and secrecy which a civil servant owes to the nation, to his own colleagues, and to the government in matters which are covered by the first four clauses of this Bill. That is what we are concerned with.
In speaking about analogies, perhaps I may mention another analogy made by the noble Lord, Lord Jenkins of Hillhead, who spoke of the Obscene Publications Act 1959. I was particularly interested because I had the responsibility of replying for the then government from the Front Bench in another place when he was dealing with that Bill, as he may remember. The noble Lord invited the Committee to consider the defence of literary merit in regard to obscene publications and apply what he alleged was a principle that should be applied to official secrets as in this Bill. However, surely that is again an analogy very far removed from the circumstances we are responsible for considering.
Let us now take the position of the jury in these matters. The noble and learned Lord was quite right to mention that the defendant will have to prove

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several matters to the jury if this new clause is added to the Bill. Let us consider what those matters will be. First, he would have to prove that there was serious misconduct involving crime or fraud. That might not be too difficult because, after all, juries are accustomed to dealing with such matters. However, "abuse of authority" is a fairly vague expression. It relates to the abuse of authority by those inside the public service. By the same token, "neglect in the performance of official duty" is also vague. I will make a general comment covering all these matters in a moment but I ask the Committee to bear in mind that those are matters on which the jury would have to decide.
We then find that the jury would have to decide whether the disclosure was in the public interest. Finally, in the case of a Crown servant, a government contractor, and so on, the jury would then have to decide whether the defendant had taken,
"all reasonable steps to comply with any established procedures for drawing the misconduct to the attention of the appropriate authorities without effect."
I have great respect for the jury system and considerable experience of it in one way or another, as have a number of Members of the Committee, but I say with respect to noble Lords opposite that these are not matters which should safely be left to juries. They do not have the background knowledge. They do not live in the world of national security, international relations, and so on, with which these matters are concerned. Therefore, to my mind, it is no strong argument that these are matters to be left for juries to decide upon.
We must bear in mind that before a civil servant is ever brought before a jury he will have taken responsibility upon himself; he will have become judge of these matters on his own behalf before the case is ever revealed or brought to court. It is a strange situation because if we look through the various cases of breach of security that there have been, the last action that any of the civil servants concerned has ever taken, or has thought of taking, was to go to his own superior authority to ascertain whether he was right to pursue these matters and then to reveal them. Surely it is a fallacy that these important matters of defence, and so on, can safely be left to that situation.
However, the noble Lord, Lord Jenkins, and the noble and learned Lord rightly point out that the defence of public interest is better than previous ones because of the third point which is contained in subsection (2) in Amendment No. 38. At Second Reading we listened to a very short but interesting and powerful speech by the noble Lord, Lord Hunt of Tanworth, speaking with all his experience in the Civil Service. I quote from that speech. He said that,
"there are procedures for this. The individual concerned has the right of access first to the head of his department"—
presumably that means not the Minister but the Civil Service head—
"and then on appeal to the head of the Civil Service. In the case of security and intelligence services he has also the right of access to the staff counsellor."—[Official Report, 9/3/89; col. 1617.]
I should have thought that rather than inflict upon juries the responsibility of taking decisions as to
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whether reasonable steps have been taken to follow those procedures it is best for those procedures to be allowed to take their own course.
In conclusion, I should like to take up one further point. One could make a much longer speech in seeking to answer the various arguments put forward, but I shall deal with only one more. At the end of his speech the noble Lord, Lord Jenkins of Hillhead, said that there were two matters with which he wished to conclude. One of them I summarise in this way. I hope the noble Lord does not mind if I paraphrase his words and that he will correct me if I am wrong. He said, in effect, that there have been so many leaks, so many breaches of security that it has been impossible to stop, and so many revelations made that we ought to give up the struggle and allow something like a free-for-all so long as one can prove that there was misconduct, a public interest, and that reasonable steps had been taken to refer the matter to higher authority. I have always respected the noble Lord's wisdom in the past but I should have thought that that is the counsel of despair and defeat. It is an argument that we should not follow.
Lord Jay: I should like to ask the Minister two questions about where this Bill stands. It seems to me that we are not making an important distinction as clear as we might do. I agree with the noble Lord, Lord Boyd-Carpenter, myself having been both a Minister and a civil servant, that Ministers are not always right; nor are civil servants always right. I also agree with the noble Lord, Lord Pym, that with regard to the question of public policy a civil servant has no right to take the view that he knows better than the elected government. They may both be wrong. However, on a question of policy we must work on the assumption that the elected government and the responsible Minister are more likely to be right than a judge or jury or a civil servant or a newspaper.
Let us suppose that something quite different from an issue of policy is at stake. Such things have happened and may well happen nowadays. A Treasury civil servant may learn that a Treasury Minister is in process of selling Budget secrets for private gain to some outside person, and may gain no satisfaction, with no action being taken within the hierarchy. That situation is unlikely but not inconceivable.
Alternatively, a civil servant in the Ministry of Defence may learn that a senior official or defence minister is selling secrets to a representative of the Soviet intelligence service about which we have heard so much from the noble Lord, Lord Boyd-Carpenter. The question I should like to ask the Minister is this: What would be the position of that civil servant under the law, unamended, as it now stands? Would he have any remedy or would he be liable to be prosecuted? I suppose that he would not be prosecuted if he went to the Serious Fraud Office; but if he went outside the official machine, would he have any defence? Secondly, if that is the case, what would the Minister advise a civil servant to do if he found himself in those circumstances?
Lord Carver: I was very nearly drawn in favour of this amendment by the extremely persuasive arguments of the noble Lord, Lord Jenkins of Hillhead and the noble and learned Lord, Lord Elwyn-Jones. Nevertheless, I have considerable reservations which do not concern the problem of the Crown servant or the member of the armed forces. I entirely agree with the noble Lord, Lord Hunt, that there are other people to whom a Crown servant can go in order to relieve him of a burden on his conscience if his own Minister or Secretary of State or Permanent Under-Secretary is not forthcoming. My concern here is that this amendment could be exploited by unscrupulous people who are not Crown servants and who acquire information by some means or another and then attempt to exploit the combination of either abuse of authority or neglect of the performance of official duty and the argument that the disclosure was in the public interest, having regard both to any benefit and to any damage that resulted. This could open the door to a great deal of undesirable disclosures.
Rather reluctantly I feel myself bound not to support this amendment. I believe that the answer lies in a more careful look at the definition of "damaging disclosures". To keep this point in proportion we must first recall that this Bill enormously reduces the area over which the previous Official Secrets Act was employed. It reduces it to four areas. In two of those important areas, defence and international relations, the prosecution must prove that the disclosure was damaging. It is that definition of "damaging" which Amendments Nos. 13 and 14 address. We are not talking about many of the kinds of disclosures which noble Lords have spoken about; we are only talking about disclosures under this Act. My natural feelings are towards openness of information and the view that anything which is in the public interest should be disclosed; but I believe that this amendment as it stands would open the door to a number of very undesirable disclosures.
Lord Beloff: I should like to make a point that has not been fully ventilated. There is a great deal in what the noble Lord, Lord Jenkins, had to say about the desirability in the last resort of not preventing some great damage to the nation as a whole by concealing a misdeed on the part of a public servant. If the matter had stood there, I should have thought that one could go along with this amendment. However, having heard the noble Lord, Lord Hatch of Lusby, I am now convinced that we cannot accept the amendment because it is suggested that it is to be taken much further. I say that for this reason. If one envisages the situation in which great damage has been averted by some act which is itself unlawful, no sensible government would prosecute and no imaginable court would convict. In that sense, public interest is always implicit in the laws that we make. However, if we write it into the law and say that there is something very special about public interest, which is not the interest as defined by Ministers or the Civil Service superiors of the individual in question, but is something about which he should make up his own mind, we are doing the opposite of what I am sure the noble Lord, Lord Jenkins,
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would wish to do. Civil servants would be encouraged to break the law in regard to official secrets, because they would say, "Parliament has said that we have the right to have views of our own as to what is public interest and what is the national interest".
We can take with this point the comment made by the noble Lord, Lord Boyd-Carpenter. There are organisations in this country which will be only too anxious to encourage individuals to explore their consciences to see whether they cannot find some use of the information that they have in order to pursue the causes which these organisations have at heart.
In my view the Civil Service is by no means impeccable; it is an institution which I have criticised in your Lordships' House and which I will criticise in the future. However, one thing is essential if we are to have a Civil Service and that is that there must be an ethos which takes public interest in the way in which it has always been taken; the interest as defined by the elected Ministers to whom they are responsible. There is bound to be the odd person who is a self-important nincompoop like Mr. Ponting; there is bound to be the muddle-headed young idealist female like Miss Tisdall. They will always be there. What we do not want is to encourage their number to increase by making it seem respectable. Therefore I appeal to Members of the Committee not to accept this amendment.
Lord Mishcon: Perhaps I may say to the Committee without pretension that this amendment is not only capable of academic argument. It also has essential practicalities. The essential practicality has not been dealt with so far in the worthy speeches made against the amendment. By the description of the arguments as "worthy", I do not mean that they are acceptable but that they are at least logical and realistic. The amendment has as a precondition that there is something rotten in the state of Denmark. We behave at our peril like Hamlet, wondering what to do about it and deciding, in scene after scene and act after act, to do nothing at all.
A crime has been committed. A fraud has been perpetrated. A grave impropriety has been done. Let us forget for a moment the arguments about the last two words in the amendment. It may well be that at Report stage some other words can be introduced. Those are the matters about which we are talking. They are there not in the mind of the individual because, as my noble and learned friend Lord Elwyn-Jones pointed out, unless these matters are proved to exist the defence will collapse. Counsel for the defendant, however eloquent he may be, cannot argue—because he will be stopped by the judge—that his client thought that this was so, that he imagined that there was reasonable cause and that he had good grounds for thinking that he had reasonable cause. Those who have argued about this matter must take it for granted that the judge in charge of the trial would stop counsel in his tracks. He would say that while that might be a worthy argument if the defendant were convicted, it would be an argument in mitigation and would have nothing to

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do with the offence, whether it had been committed or not. We are trying to deal with things that have gone badly wrong.
It is difficult to do anything in Parliament when there is a heavy majority which will decide even without listening to the debate to vote against an amendment. I say in all humility that when this matter came before another place the criticism was made that one could have someone who suspects. The noble Lord, Lord Beloff, described various people, possibly claiming the protection of privilege while doing so, who had made complaints in the past. He saw fit to describe them in certain ways. He may be right or he may be wrong. The same kind of thing was said in another place. It was said that some idiot might suspect something but that that had gone and had been altered.
The next argument was that any form of misconduct was included in the amendment in another place. That was thought by the Government to be too vague. Those words were left out. We altered it too to make it absolutely clear that the civil servant would have to go through every conceivable step and then find at the end of the day that he had got nowhere and that there was still something rotten in the state of Denmark. It may be said that if someone goes to the top of the Civil Service and discovers a crime, fraud or impropriety, it will be dealt with and there will be nothing left for anyone to do by way of disclosure. In The Times of 25th January this year there was a letter signed by four former permanent secretaries. They were the noble Lord, Lord Croham, Sir Frank Cooper, Sir Patrick Nairne and Sir Douglas Wass. They did not advocate—and I do not pretend that they did— public interest defence, but this is what they said:
"It does not seem to be wholly unimaginable that a government might perpetrate some serious impropriety in circumstances in which the head of the Civil Service might be unable to respond effectively to representations about it from within the service".
It is not I, never having been a civil servant, saying it. It is not just my noble friend Lord Jay, a distinguished civil servant and a distinguished Minister in his time, saying it. Four former permanent secretaries have gone on record to say that they can imagine it.
I say to the noble and gallant Lord, Lord Carver, who was hovering on the brink of accepting the amendment and not accepting it, that we are not talking about a civil servant who feels there has been an error of policy. That is not within the spirit of the amendment. We are trying to be determinate unlike Hamlet when something really goes wrong in government. When members of the Government Front Bench say with their hands on their heart and with perfect honesty and integrity that this could not happen in their government I will accept it from them and hope that by way of compliment they will say that it could never have happened with a government in the past representing the Labour Party.
As was said by the noble Lord, Lord Jenkins, we are not legislating only for the present Government. We are not legislating for previous governments. We are legislating for years ahead. This amendment tries
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to assure the public that if something really dreadful is happening in government circles, we are not saying "Do not dare to utter a word about this. Do not dare to let it get into the press. And if you, the press, dare to repeat it, you will have an offence alleged against you; we have seen to it that there will be no defence in the public interest and no defence about opening the gates of iniquity". In that way iniquity can be allowed to escape but escape only until the disclosure is made. It is in that spirit that we have confidence in the amendment.
5 p.m.
Lord Trafford: As always, I am nearly persuaded by the able advocacy of the noble Lord, Lord Mishcon. Once again I began to feel that perhaps he had a strong point. I have sympathy with what was said by the noble Lord, Lord Jenkins of Hillhead, about secrecy in the Civil Service. In fact, I had sympathy with a good deal of what he had to say. However, two thoughts came to mind. During the Second Reading debate one of the comments that appealed to all sides of the Chamber concerned the balance of the Bill. It was first raised by my noble friend Lord Thorneycroft. The problem with the amendment is that it tilts the balance of the Bill so far that to a large extent great parts of the legislation would become practically meaningless. The width of the so-called public interest defence would become so great that almost any advocate—one would not need the noble Lord, Lord Mishcon, or one of the other able advocates on the Benches opposite addressing themselves to this matter—could put forward a defence to anything a civil servant might wish to do.
My second point is that very often when civil servants or people in the public sector have leaked and brought matters into the public domain they have not gone through any of these procedures. They are not likely to do so in the future. I accept that fact. For the most part, people—I think it was those with a tender conscience that my noble friend Lord Beloff referred to—are much more likely to leak information directly than they are to go through this procedure. I accept all those factors.
However, there are two other major factors to be considered. First, although this is in no sense a freedom of information Bill, it has swept aside large and vast areas which were subject to the previous Official Secrets Act. Secondly, having defined pretty narrowly the essential necessity of the secrecy of the security services, the intelligence services, the armed forces and international relations—the points my noble friend Lord Pym made—I think that it has delineated the core of the security of the realm. I would go a long way with the noble and gallant Lord, Lord Carver, when he made the comment that there are issues in future amendments which will deal with this matter.
The amendment drives a coach and horses through the Bill. It is far too wide. Indeed, anyone can get away with nearly anything. Further, I am afraid to say that it would probably of itself endanger the security of the realm.
Lord Hemingford: I put my name to this amendment because I feel that in the debate in

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general about the Official Secrets Bill too much concentration has been put upon the role of civil servants. Indeed, I find that much of today's discussion has gone the same way. I suppose that it is understandable in the sense that the Government have demonstrated a certain amount of obsession with leaks from within the Civil Service, in the background, no doubt, of the Spycatcher and Ponting trials. In my view such cases are hard cases which may make bad law.
I must say that I felt we had met in this amendment the concerns of the Home Secretary who said in the debate in another place that what he was really concerned about was public servants who might have bad motives and who would be tempted or encouraged to inflict quite serious damage on the interests of the citizen because they felt Parliament had given them a way to get away with it. Other noble Lords have tried to impress upon the Committee how narrow the requirements of the amendment are. I do not propose to repeat those arguments. However, I must say to the noble and gallant Lord, Lord Carver, that I believe someone who was not a civil servant would not see an easy way through this language, given that one would have to persuade a jury that one had acted responsibly under such language.
In my view the amendment makes it absolutely clear that a public servant would have to go through the machinery which was so graphically described to us on Second Reading by the noble Lord, Lord Hunt of Tanworth. However, when he reached the end of his remarks he said that in the last resort if a civil servant still felt in all conscience that he should reveal something it would be difficult to imagine that a jury would convict. I do not believe that that is a proper way to leave the issue. It seems to me that we ought to be trying to write a law which will be specific on such a point and which would not leave it for a jury to guess what we meant. I am sure that we must have some kind of language of this nature to protect that ultimate situation.
In a way it is unfortunate that the attempt to get a public interest defence has been described in various ways as a coach and horses and an overarching defence, and so on. It is not so. It is extremely narrow, and it would be very difficult to meet.
During Second Reading and on other occasions during the debate we have heard much from many distinguished former civil servants about the importance of relations between Ministers and civil servants. Indeed, there has been some suggestion that a public interest defence would interfere with that relationship. The amendment certainly would not do so. By mentioning the internal machinery it could be said that it would actually strengthen the situation.
As I say, other objections which have been raised have been rather more vague. However, I do not see this as a case of overarching; I see it as a piece of sensible underpinning, or buttressing, which would come into play only in extreme circumstances. The suggestion has also been made that it would be difficult to define the public interest. I have more faith in juries than perhaps some other people. I do
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not believe that they would find it all that difficult. In any event I believe that the words already appear in official secrets legislation. Indeed in the Official Secrets Act 1920 the Secretary of State is required to consider the public interest. Under Section 4, where it appears to him that such a course is:
"expedient in the public interest",
he may by warrant require people who run telegraphic or cable systems to hand over copies of originals and transcripts. If the Secretary of State can assess the public interest, why should not a jury also be able to do so?
It has been said that we would be creating a new defence with this "public interest defence". Indeed, other Members of the Committee have mentioned the background to the matter. The issue may be arguable, but even if it were true I do not see why it should be decisive. After all, we are considering a Bill which breaks a good deal of new ground. I entirely accept what other Members of the Committee have said about the amount of scope which it removes from the official secrets legislation. However, it is important, in view of some of the remarks made earlier, to remember that Section I of the existing Official Secrets Act, which deals with espionage, remains. However, we are not dealing here with the question of espionage; we are dealing with other less severe matters.
Even if there had not been a defence of public interest in the past—in fact I think that there has been—I do not see why it would be wrong to create one. As other Members of the Committee have mentioned, Section 2 did contain reference to the interests of the state and those crucial words are now being removed from the Bill. I believe that we must replace them with something or a fundamental point will have been lost.
There has been a certain amount of criticism by the people who proposed the legislation on the grounds that we have done nothing but look for deficiencies and that we have not been sufficiently willing to pay tribute to what is being liberalised. Surely our job here is precisely to look for such deficiencies and, if they exist, to put them right. It is precisely because this Bill is more tightly drawn than the old Section 2 that it is more likely to be used effectively. That makes the need for adequate defences more, and not less, important. The absence of a public interest defence is seen by many people outside the Civil Service to be a deficiency so serious as to outweigh all the rest.
I think it is worth enumerating some of those people, apart from the Members of the other place who have already been mentioned. I have recorded the following from the world of publishing. The Periodical Publishers' Association, representing 80 per cent. of magazine publishing interests; the Newspaper Society, representing the bulk of local newspaper publishers; the publishers and editors of 15 of the country's leading book publishing firms; the Association of British Editors whose members include senior editorial people from the bulk of serious national newspapers, the BBC, independent television and radio, local newspapers and periodicals; the Guild of British Newspaper Editors

927
whose mainly local membership is fortunate in the expertise of its parliamentary and legal committee; and the Consumers' Association whose impartiality we can take for granted. All these have come out strongly in favour of a public interest defence. They believe its absence is a crippling defect.
Are they all to be dismissed as wrong simply because the Government have taken against the idea of allowing a citizen to defend him or herself on the grounds that what was disclosed may have harmed the security service but that non-disclosure would have inflicted greater harm on the nation, the state, the public, the democratic way of life, Parliament or however you choose to define the greater good? The best thing that was said in the debate in another place was the statement made by the honourable Member for Aldridge Brownhills, Mr. Shepherd, when he pointed out that the Government, which he otherwise supports, were proposing to send a man or woman to prison if he or she reveals a crime or fraud or iniquity, without their having to adduce any form of damage or harm. He added: That is an outrageous and monstrous proposition. It is a proposition that tyrants hide behind.
If we allow this Bill to leave the Chamber without this amendment or something like it, we shall have connived at that proposition. I cannot believe that we will do it. One of the Prime Minister's strengths, no doubt, is her utter conviction that her course is best. But in some ways it is also her greatest failing. In the face of all the opposition that has been expressed to this Bill as it stands, I believe it is our job to look at it again. In a letter to the Independent last week the Minister of State at the Home Office, Mr. Patten, wrote:
"Even in the area of security or intelligence, any journalist who made an unauthorised disclosure of official information relating to the work of the security and intelligence services would only commit an offence if the prosecution could prove that particular disclosure damaged, or was likely to damage the work of the services, and that journalist knew it would."
The Government have constructed the Bill to reflect their view which I understand, that any disclosure about the security and intelligence services is damaging. They therefore expressly rule out any defence on the grounds that the greater good required a disclosure. A jury will not be permitted to have laid before it an argument of that kind. That has got to be wrong. In my book it is against natural justice. It is also dangerous. The welfare of the security and intelligence services, important though it is, is not necessarily synonymous with the welfare of the citizenry at large. We must recognise that in the Bill. As Mr. John Birt, Deputy Director General of the BBC, has said in relation to telephone tapping:
"This Bill insists that no unauthorised disclosure whatsoever about a warranted interception can be justified. The prosecution needs only to prove the fact of the disclosure—that it has taken place—and not that it was harmful. But we cannot be certain that governments at all times will use their power to monitor private conversations—or will use the information collected—according to principles that would win broad consent".
It has been said that, if it ever came to it, things would work out all right because it would be impossible to get a conviction. We surely cannot take comfort in assurances of that kind. Let us say what we mean in the Bill which may stand as an Act
928
of Parliament, and let us recognise that what anyone, however eminent, may say in or outside of this Chamber will have no effect in the end on the way in which the law is actually administered.
5.15 p.m.
Lord Belstead: We know, as the speech made by the noble Lord, Lord Hemingford, shows, that there is disagreement in the Chamber as regards this first amendment at the Committee stage of this Bill. When we had the Second Reading of the Bill I believe that there was wide agreement in all parts of the House that the law on official secrets is in a very unsatisfactory state. That is because Section 2 of the 1911 Act penalises the disclosure of any official information however trivial and irrespective of the harm that it is likely to do. The attempt to try to find an alternative dates back to the report Lord Franks made in 1972. Six years later the Labour Government published a White Paper that followed closely the recommendations of the Franks Committee and in particular its proposal that when there was to be a test of the harm that an unauthorised disclosure would cause, a Minister would certify that the test had been met.
In 1979 the incoming Conservative Government introduced a Bill which also retained the provision for ministerial certificates. But when that Bill came to be introduced into your Lordships' House so great was the reaction against the idea of ministerial certificates that it caused the Government to withdraw the Bill and to think again. Now, 10 years later, we have brought forward this Bill which seeks to resolve the unsatisfactory nature of Section2 by identifying just six areas of information to which we believe the criminal law should apply, but leaves all the issues relevant to unauthorised disclosures to be decided by a jury. So we have genuinely tried to follow the advice that was given to the Committee by my noble friend Lord Home by making this Bill as precise as possible.
In those few instances in the Bill where we believe that all unlawful disclosures must be harmful; namely, as regards statutory warrants authorised by the Secretary of State and disclosures by members of the security and intelligence services and notified people, we say so. In all other cases; namely, in defence, international relations, foreign confidences and crime as well as security and intelligence, we set out in the Bill what we see as the harm and the degree of harm which it is necessary to cause before a criminal offence can be committed. The Government feel that there is no other basis on which a jury can be expected to decide such matters. There is no other way of ensuring that there is a responsible balance between the secrets that we must protect by the criminal law and those that do not require that protection.
The problem with this amendment is that before the Committee ever begins to examine the details of the Bill, it is in effect being asked to shoulder aside the Bill's main provisions by creating wholly new matters for a jury to attempt to decide and by changing totally the balance which the Bill strikes between those secrets which must be protected by the criminal law and those which need not. I feel

929
that my noble friend Lord Pym was absolutely correct when he warned that we are dealing here with matters that go to the very heart of our national security. We are talking about the disclosure of secrets that could mean undoubted damage to the work of our security and intelligence services, to the capability of our armed forces, and the undoubted jeopardy to our country's interests abroad, even to the loss of lives of our citizens. It could mean any of those things because a discloser was claiming that what he or she had done was in the public interest. That would have to be proved but that would be later on. For the moment there can be no going back. The disclosure would have been made and the damage done.
I ask the Committee to consider most carefully whether it can really accept a proposition that says that such harm can be done knowingly as long as the discloser can claim that on balance—or that is the effect of the amendment—it was in the public interest. I do not believe that it would be in the public interest that such harm could knowingly be done, and I am fortified in that belief by the same view expressed by many distinguished noble Lords in different parts of the Committee this afternoon. However, it is a crucial decision of principle for the Committee on the first amendment to the Bill.
I also ask the Committee to consider for a moment how the amendments would work out in practice. Let us suggest that a civil servant believes that he has evidence of some crime or fraud or has identified some abuse of authority or neglect of duty. In his view it amounts, as the amendment states, to serious misconduct. The evidence includes information which falls within one of the only half a dozen categories protected from disclosure by the Bill. Quite properly the civil servant takes the case and his suspicions to his superiors. We are asked to believe that they do nothing about it or nothing that the individual believes, as the amendment suggests, to be effective. He takes it to his head of department, with the same result. Ministers may be consulted. The civil servant exercises his right of appeal to the head of the Civil Service. If he is a member of the security and intelligence services, he takes the matter to the staff counsellor who was appointed only in 1987. The counsellor is independent and has access to all concerned, including the Secretary of the Cabinet and the Prime Minister.
The noble Lord, Lord Jay, asked me specifically what would be the situation where there was an example of, as I understood it, a Minister or a civil servant selling budget or defence secrets. As the situation exists at present, the line of responsibility would be the same as regards working up through the discipline of the Civil Service or the security or intelligence services.
However, perhaps I may add something. The present Act of 1911 covers any unauthorised disclosure of information. The new Bill does not cover official information relating to budget secrets at all. I can see no possibility in which a disclosure about selling defence secrets could be said to damage the capability of our armed forces if that was revealed. So the good-hearted person, the Crown servant who wanted to make sure that these
930
iniquities would be revealed, would not, as I understand it, be in breach of anything which is to be found in the Bill.
I am also not clear about how the civil servant can always be expected, before taking the awful step of disclosing a secret protected by the law, to judge the results of the representations that he or she would have made to line management. The amendment refers to the procedures having been gone through "without effect". I assume—and I do not mean to be sarcastic here—that that means without the effect which the individual judges to be satisfactory. But the question which I think lay behind at any rate part of the speech made by my noble friend Lord Pym was: should the individual be the one to decide? It may well be that we are talking about matters of the very greatest sensitivity which affect the security of the nation. In such an event, is it right that full and detailed information should always have to be revealed to the individual concerned? If I may say so, this bears out the warning of the noble Lord, Lord Hunt of Tanworth, who, at Second Reading, said that such a procedure would change the nature of the relationship between the individual civil servant and the government of the day which it is the civil servant's duty to serve.
Some Members of the Committee have spoken a little about the considerable uncertainties which the amendment would create. I only add that I do not believe that this amendment can ever be sufficiently clear to allow anyone to know absolutely when a disclosure would constitute a criminal offence and when it would not. My fear is that the result would not be a channel of final resort for the conscientious but a charter for damaging disclosures.
Here I believe it is just worth saying that the position for a person who is not a public servant is of course different in one very important respect. Having gained possession of protected information which the private individual believes reveals serious misconduct, such a person has no need to go through any of the avenues to get the matter resolved which would do no damage to the public interest. He or she does not need to go to the police nor to confront a Minister or take the matter to some authority or other. If a private individual thinks on balance that he or she can persuade a jury that the public interest would benefit by a little over 50 per cent. and the damage done would be a little under 50 per cent., then it could be that such a person would be led by this amendment to believe that disclosure could take place with impunity. If I may say so, I had the feeling that that lay behind the apprehension which was clearly voiced by the noble and gallant Lord, Lord Carver.
My noble friend Lord Home expressed a clear view in his speech that this legislation needed to be as precise as possible. My noble friend said that he felt that the concept of the public interest in the context of the Bill could not be expressed as clear or precise. With respect, I very much agree with my noble friend because under the Bill the matters to be considered by the court and the criteria for a jury are clear. However, as my noble friend Lord Renton showed in his speech, the amendment introduces a whole range of different issues which are much less

931
clear to establish; and in particular in court the jury would be required to weigh in the balance some public interest which is undefined. Presumably the whole range of harm or likely harm would be put in the scale on one side and the whole range of good or likely good would be put on the other. However, the list might be long and the possibilities endless. Unlike the tests that are to be found in the Bill, Parliament would not have given the court any real guidance.
It is not surprising then to find that in response to a similar proposal for a public interest defence, the Franks Committee decided that such a responsibility could not appropriately be placed on the courts. Franks said:
"Contentious political issues of the kind likely to arise in these cases would be very different from those issues which a jury is normally expected to decide and is regarded as best fitted to decide. Juries could find these issues difficult to handle".
It is for that reason that the Bill gives juries clear issues to resolve. But the amendment would set all that aside.
I believe that the amendment is not the way in which the criminal law can operate in this area. Nor is it the way to keep the secrets on which our country depends. Surely it cannot be right to appear to encourage and provide for damage to the interests of the nation which the Bill rightly seeks to protect. It is for that reason that I ask your Lordships not to support the amendment.
Lord Jenkins of Hillhead: The noble Lord the Leader of the House has deployed his case most forcefully and skilfully. Nonetheless it does not meet the doubts which I have in my mind. He talks as though this would be a charter for disloyal civil servants, encouraging them to leak information in almost all circumstances.
I have the greatest belief in the desirability of the Civil Service working confidentially with Ministers. I have very little faith in the civil servants who have leaked information in the past, whether they have been acquitted or convicted. Certainly I have always greatly valued confidential relations with civil servants.
The noble Lords, Lord Boyd-Carpenter and Lord Pym, rather talked as though the amendments went immensely wider than they do. The noble Lord, Lord Boyd-Carpenter, spoke to us almost a little disparagingly as having no knowledge of these grave matters which weigh upon Ministers. He has had the responsibility of being a Minister of Pensions and National Insurance, which is an important and sensitive department. But there are some others of us who have had experience of departments which deal at least equally with matters of considerable sensitivity and who certainly have no desire to create a leakers' charter.
5.30 p.m.
Lord Boyd-Carpenter: As the noble Lord has challenged my own experience, I must state that he omitted the fact that for a number of years I was also Chief Secretary to the Treasury.
Lord Jenkins of Hillhead: The position of Chief Secretary to the Treasury is an important one. I hesitate to say that there is an even more important position in the Treasury, but no doubt that will be taken into account by some Members of the Committee. However, what is undoubtedly the case is that the climate as regards leaking has changed enormously in this country from the period which I remember when the noble Lord, Lord Boyd-Carpenter, was a Minister. I was immensely struck the other day by reading in the memoirs of Lord Plowden how that great debate raged in the Government in 1952 about whether or not the pound should be allowed to float. The noble Lord, Lord Jay, will recall what the scheme was called.
Lord Jay: It was the ROBOT scheme.
Lord Jenkins of Hillhead: Yes, it was the ROBOT scheme. The debate went on passionately for six months, but nothing was ever leaked. If that had happened in the present Government or in one or two preceding Governments, we would have known all about the affair within 72 hours. It would be resounding from Wapping to the House of Commons and from Whitehall to the House of Lords. It would be all over the place immediately. There is a different climate nowadays, and to be honest it is the case that Ministers are responsible for most leaks.
In my view, as regards the great generality of issues, it is the climate which is the best protector of confidences and not the criminal law. How can a climate of confidence be best achieved? It is an extraordinary view to hold that this provision will encourage the generality of civil servants to believe that the legislation is a charter for leakers or an encouragement to leak in any sense of the word. I echo very much what the noble and learned Lord, Lord Elwyn-Jones, said, that to make this measure generally accepted across politics requires an amendment along these lines. If the Government think that the amendment goes too wide, let them suggest rather narrower definitions than we have proposed.
The provision would have a most beneficial effect. It would make the legislation into a non-partisan and a generally liberalising measure. It would preserve that small area which I am as intent to preserve as anybody. But at the same time it would allow a legitimate defence. I am not sure, for instance, whether the noble Lord the Leader of the House considers that juries will or will not have any regard to public interest under the legislation as it stands. I believe in practice that they will, but they will be going rather against the letter of the law. In my view that proves that the letter of the law will be rather foolish. It is much better to maintain control over the letter of the law and to make it sensible. I believe very much that by doing that we shall give this measure a wider basis of support across politics and across the Chamber. The measure may well stand on the statute book for as many decades as its predecessor of unblessed memory has done. I therefore wish to test the opinion of the Committee.
5.33 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents 101; Not-Contents, 157.

DIVISION NO. 1

CONENTS

Addington, L.

Listowel, E.

Airedale, L.

Llewelyn-Davies of Hastoe, B.

Amherst, E.

Annan, L.

Lloyd of Kilgerran, L.

Ardwick, L.

Lockwood, B.

Avebury, L.

Longford, E.

Barnett, L.

Lovell-Davis, L.

Blackstone, B.

Mcintosh of Haringey, L.

Bonham-Carter, L.

Mackie of Benshie, L.

Boston of Faversham, L.

McNair, L.

Bottomley, L.

Mais, L.

Broad bridge, L.

Mason of Barnsley, L.

Carmichael of Kelvingrove, L.

Mayhew, L.

Carter, L.

Milner of Leeds, L.

Cledwyn of Penrhos, L.

Mishcon, L.

Cobbold, L.

Monson, L.

Cocks of Hartcliffe, L.

Morton of Shuna, L.

Dacre of Glanton, L.

Nicol, B.

David, B.

Ogmore, L.

Davies of Penrhys, L.

Phillips, B.

Dean of Beswick, L.

Pitt of Hampstead, L.

Donaldson of Kingsbridge, L

Ponsonby of Shulbrede, L. [Teller.]

Dormand of Easington, L.

Elwyn-Jones, L.

Prys-Davies, L.

Ennals, E.

Rea, L.

Ewart-Biggs, B.

Ritchie of Dundee, L.

Ezra, L.

Robson of Kiddington, B.

Falkender, B.

Rochester, L.

Falkland, V.

Russell, E.

Foot, L.

Seear, B.

Gallacher, L.

Serota, B.

Galpern, L.

Shackleton, L.

Gladwyn, L.

Shepherd, L.

Graham of Edmonton, L.

Stallard, L.

Grey, E.

Stewart of Fulham, L.

Grimond, L.

Stoddart of Swindon, L.

Hampton, L.

Strabolgi, L.

Hanworth, V.

Taylor of Blackburn, L.

Harris of Greenwich, L.

Taylor of Gryfe, L.

Hatch of Lusby, L.

Thomas of Swynnerton, L.

Hemingford, L.

Tordoff, L. [Teller.]

Hutchinson of Lullington, L.

Turner of Camden, B.

Irving of Dartford, L.

Underhill, L.

Jacques, L.

Wallace of Coslany, L.

Jay, L.

Whaddon, L.

Jeger, B.

White, B.

Jenkins of Hillhead, L.

Williams of Elvel, L.

John-Mackie, L.

Willis, L.

Kennet, L.

Winchilsea and Nottingham, E.

Kilmarnock, L.

Kirkhill, L.

Winstanley, L.

Kirkwood, L.

Winterbottom, L.

NOT CONTENTS

Ailesbury, M.

Blake, L.

Alexander of Tunis, E.

Blatch, B.

Alexander of Weedon, L.

Blyth, L.

Allerton, L.

Boyd-Carpenter, L.

Arran, E.

Brabazon of Tara, L.

Ashbourne, L.

Braye, B.

Balfour, E.

Brougham and Vaux, L.

Barber, L.

Butterworth, L.

Beaverbrook, L.

Caithness, E.

Belhaven and Stenton, L.

Campbell of Alloway, L.

Bellwin, L.

Campbell of Croy, L.

Beloff, L.

Carnegy of Lour, B.

Belstead, L.

Carnock, L.

Bessborough, E.

Carver, L.

Birdwood, L.

Cathcart, E.

934

Chelwood, L.

Manton, L.

Clitheroe, L.

Margadale, L.

Colnbrook, L.

Marley, L.

Colwyn, L.

Marshall of Leeds, L.

Constantine of Stanmore, L.

Maude of Stratford-upon-Avon, L.

Cottesloe, L.

Merrivale, L.

Cox, B.

Mersey, V.

Craigavon, V.

Milverton, L.

Craigmyle, L.

Monk Bretton, L.

Croft, L.

Mottistone, L.

Cross, V.

Munster, E.

Davidson, V. [Teller.]

Murton of Lindisfarne, L.

Deedes, L.

Napier and Ettrick, L.

Denham, L. [Teller.]

Nelson, E.

Dundee, E.

Newall, L.

Eden of Winton, L.

Norfolk, D.

Elibank, L.

Norrie, L.

Ellenborough, L.

Northesk, E.

Elliot of Harwood, B.

Nugent of Guildford, L.

Elton, L.

Oppenheim-Barnes, B.

Erne, E.

Orkney, E.

Erroll of Hale, L.

Orr-Ewing, L.

Faithfull, B.

Oxfuird, V.

Ferrers, E.

Penrhyn, L.

Fraser of Carmyllie, L.

Peyton of Yeovil, L.

Fraser of Kilmorack, L.

Piatt of Writtle, B.

Gardner of Parkes, B.

Porritt, L.

Gibson-Watt, L.

Prior, L.

Goold, L.

Pym, L.

Gray of Contin, L.

Reay, L.

Greenhill of Harrow, L.

Renton, L.

Greenway, L.

Renwick, L.

Gridley, L.

Rodney, L.

Hailsham of Saint Marylebone, L.

Rollo, L.

Romney, E.

Halsbury, E.

Rugby, L.

Hankey, L.

Saltoun of Abernethy, Ly.

Harmar-Nicholls, L.

Sanderson of Bowden, L.

Havers, L.

Seebohm, L.

Hayter, L.

Shannon, E.

Headfort, M.

Sharples, B.

Henley, L.

Skelmersdale, L.

Hertford, M.

Southborough, L.

Hives, L.

Stodart of Leaston, L.

Holderness, L.

Strange, B.

Home of the Hirsel, L.

Strathcarron, L,

Hooper, B.

Strathclyde, L.

Jenkin of Roding, L.

Strathspey, L.

Johnston of Rockport, L.

Sudeley, L.

Joseph, L.

Suffield, L.

Kaberry of Adel, L.

Taylor of Hadfield, L.

Killearn, L.

Teviot, L.

Kimball, L.

Thomas of Gwydir, L.

Kinloss, Ly.

Thurlow, L.

Kinnoull, E.

Trafford, L.

Lauderdale, E.

Trefgarne, L.

Layton, L.

Trumpington, B.

Liverpool, E.

Vaux of Harrowden, L.

Lloyd of Hampstead, L.

Weir, V.

Long, V.

Whitelaw, V.

Lyell, L.

Windlesham, L.

McFadzean, L.

Wise, L.

Macleod of Borve, B.

Wynford, L.

Malmesbury, E.

Young of Graffham, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.42 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 2:
Page 1, line 9, leave out ("discloses") and insert ("makes a damaging disclosure of").
The noble Lord said: I hope that I can be rather more brief in regard to this amendment than we had to be in relation to the previous amendment. However, the principle involved is still a very serious one. If I quote the Leader of the House correctly, in relation to the last amendment he talked at all times

935
about disclosures which were "damaging disclosures" or "injurious disclosures". He was referring to disclosures under Clause 1. It is unfortunate that in the Bill the word "damaging" does not occur in front of the word "disclosure". That means that whatever the disclosure may be an offence has been committed, whether or not the disclosure causes the slightest harm.
Perhaps I may give an example of what would be an offence under the provision as it presently stands. I hope that it is not a reductio ad absurdum. Someone in the intelligence service or who was previously in the intelligence service may decide to write an article in which he says that the reason that people in the intelligence service are not more intelligent (and he feels that in some ranks they are not at all intelligent) is because the pay is very poor. He then talks about the pay in the Civil Service. He may say that in his view members of the intelligence service ought to be people who do not drink and certainly do not drink excessively but in his experience too many members of the intelligence service drink. He may say that people who enter that service ought to be very much better briefed and educated and he may give examples to show that people who enter the intelligence service have no academic qualifications whatever. Without any doubt, however absurd my examples may seem to the Committee, an offence would have been committed because there had been a disclosure in regard to the intelligence service, its establishment or whatever it may be.
It is not sufficient to laugh and say that the Attorney-General has to decide whether or not there will be a prosecution and that he is unlikely to decide to prosecute in the cases which I have enumerated. That is not a sufficient answer. Someone in the intelligence service or who has worked in it in the past must know, and a newspaper must know, whether or not a criminal offence is being committed. We are not considering whether or not a prosecution would be brought.
To quote the Leader of the House once again, I hope not unfairly, every time he referred to a disclosure he talked about a "harmful" disclosure. That is all this amendment seeks—that a disclosure in respect of which a criminal offence is committed should at least be a harmful disclosure. I beg to move.
5.45 p.m.
Lord Alexander of Weedon: In the last legal year I argued the government case in the Spycatcher saga in three courts with, on each occasion, less than total success. Therefore I hope that my opposition to this amendment does not blight the response that may be given on behalf of the Government.
I seek to suggest that, as the noble Lord, Lord Mishcon, said in connection with the previous amendment—on which, had time permitted, I should have liked to have intervened briefly—the problem is a practical one. The practical problem is how one gets evidence on this type of issue before a jury. I think that I am right that throughout this century the courts have taken the view, whether in cases concerning prize ships in the First World War,
936
the invasion of the Wethersfield air base, or most recently in the case concerning trade union rights at GCHQ, that they would rarely second guess the Government on issues of national security.
I think that it is also right that the European Court of Human Rights substantially shares that view. If I remember correctly in a case concerning admission to the Swedish Navy the Court of Human Rights accepted that a domestic government had a substantial personal margin of appreciation on issues of national security. That, to me, illustrates the difficulty of putting before judges and at least equally before juries material in this area. In the case of the last amendment the jury would have had to comb through the activities of the security service to decide whether there had been misconduct and to decide whether revelation would do great harm.
In the case of this amendment is it right that it might be necessary to put evidence before a jury to show that a disclosure was damaging? Would it be possible that the defendant would argue that the disclosure was in the interests of the service and not damaging to the security of the nation? If so, would the prosecution have to lead evidence to show precisely where the damage had been done? In this very difficult area (and, personally, I think in this area alone) it is probably necessary that there should be an absolute blanket—an absolute blanket which precludes the inclusion of a word such as "damaging".
I wish to add one further reflection. Despite the fact that, on practical grounds, I believe that there needs to be a blanket, I also believe that there may be the occasional, very rare situation, as has been mentioned in the Chamber this afternoon, when there is unease as to whether the established procedures alone are sufficient to investigate what is said to have taken place. I hope that complaints that the Government use the service to suborn opposition parties will be rare. I hope that complaints, as in the Peter Wright case, that members of the service seek to suborn or undermine the elected government will be rare. I hope that suggestions of massive bribery in government contracts will be rare.
However, if an allegation is made within the established procedures of serious misconduct and if the person within the service making that allegation is not in the end satisfied, I very much hope that the Prime Minister of the day will in those situations not hesitate to call in the Security Commission to give an independent judicial evaluation of what has taken place. I believe that that would be good for public confidence in the service and that it would quickly defuse any over-sensational allegations such as those made by Mr. Peter Wright which gained a certain credibility before his motives and the content of his work became somewhat suspect.
I believe that the use of the Security Commission as an independent body in rare cases of allegations of serious misconduct is a better course than doing anything that would erode what I suggest should be the blanket confidence of the position of the service. In view of that, I respectfully invite noble Lords to reject the insertion in the clause of the word "damaging".
Lord Hutchinson of Lullington: It is an honour to follow the noble Lord, but he has clearly been affected by his long attempts in the Spycatcher case to get court after court after court to accept a proposition which was put forward by him on behalf of the Attorney-General and which the Committee will remember was described by Mr. Justice Scott as a proposition that could only be found to be adopted behind the Iron Curtain. Furthermore, when the noble Lord went to the Judicial Committee of this House, the noble and learned Lord who dealt with the case said that, in our courts, there are no absolutes in relation to the law of confidence.
I say with the greatest possible respect to the noble Lord that surely there should not be absolutes. Surely the whole point of the abolition of Section 2 was to get rid of the blanket. The blanket was the problem in Section 2 of the current Act. Surely that has been what has lain behind all the attempts to remove Section 2. Why did we all want to get rid of Section 2? Why have there been all those reports? The answer is because Section 2 was a blanket section. We come back to the problem of what has been called the cups of tea syndrome; namely, that absolutely anything that is disclosed is an offence under Section 2 if it comes from a civil servant who has learnt it from his work.
When we came to look at the Bill it was a great sadness to see that in Clause 1 we were back exactly where we were before—right back at the beginning all over again. Surely in a mature democracy all we are trying to do here is to say that if someone makes a disclosure, it must be damaging. That is all. A person commits no offence if he discloses information about cups of tea; such information as the noble Lord, Lord Mishcon, mentioned a few moments ago; or rubbish or stale information that is of no harm to anyone. I suggest to the Committee that the worst thing that can do so far as concerns the law is to have a law that is constantly broken or constantly held in disrepute.
I say to the noble Lord, Lord Alexander, that if there is a blanket offence, the absolutely inevitable result is leak, leak, leak. There will inevitably be investigative journalism concerning the matter, books and articles on the subject and journalists fed by disloyal civil servants, as we have seen in the last 20 years. Why? The answer is because there is an absolute offence. It is fatal to have an absolute offence because people will not obey it. Furthermore, juries will not obey it. That was why capital punishment for stealing sheep came to an end. Juries will not stand for such things. No one will ever respect a law which states that an official commits a crime and may go to prison for disclosing something for which he has no defence at all and in respect of which one does not have to prove that he has done any harm. Surely, in a mature democracy such as ours, we should never allow such a position to occur and should not have it on the statute book. All that we are doing in the amendment is to say: yes, of course, we must have security, but in every case harm must be established.
Lord Campbell of Croy: I should like to remind Committee Members that this clause is limited to
938
members of the security and intelligence services and what must be a small category of other people who have worked closely in the same work as that performed by those services. From what the noble Lord, Lord Hutchinson of Lullington, said—he referred to civil servants at onepoint—he appeared to speak to a much greater part of the Bill, including other clauses that deal with departments and others who have knowledge of the secrets with which the Bill deals.
Nonetheless, I understand the reason for seeking to change the wording of the clause so as to introduce the word "damaging". It is in this clause, dealing with the intelligence and security services, that that word does not appear. The present wording is:
"guilty of an offence if without lawful authority he discloses any information, document or other article relating to security or intelligence."
Noble Lords will recall that, in the middle of March just over a year ago, I initiated a debate on the security and intelligence services. My reason for proposing the debate was to urge the Government, when they carried out—as I had been pleading for in this Chamber for several years—a reform of Section 2 of the Official Secrets Act, to put those services into a separate section of the new Bill because they had to be dealt with differently. Almost everything that the services do must be secret if they are to remain secret. That is why I understand the wording that now appears in the Bill. The amendment has given us a useful opportunity to discuss the matter, but the people dealt with in this clause are in quite a different category from those in the following clauses.
The noble Lord, Lord Mishcon, produced complaints about pay and drink in the services. That is exactly the kind of point which should be dealt with by the staff counsellors. A staff counsellor for these services was introduced in 1987 and we understand that the system has been working quite well. Complaints about ordinary matters within those services now have and have had since 1987 a channel through which they can be raised. I gladly give way to the noble Lord, Lord Mishcon.
Lord Mishcon: The noble Lord is most courteous. He is absolutely right to answer my argument with regard to existing members of the intelligence service and the existence of the staff counsellor. Perhaps I did not make myself clear. I tried to instance the case of someone who had been a member of the intelligence service and who is writing his biography, doing it perfectly correctly and not revealing any secrets. He writes that during his time there he noticed that some people drank too much. He can not go to the staff counsellor because he is no longer a member of the service. Or he may say that he regarded the entrants to the intelligence service as not being of sufficiently high standard, giving reasons for his views as pay and so on. That would constitute an offence. It may have been a weak argument or a strong one but that was my argument.
Lord Campbell of Croy: Of course if the man were writing a biography, then certainly, like ordinary civil servants—and particularly members of the

939
intelligence and security services—he should have submitted a draft to be vetted in the way we have all approved. It has been done in the past and should be done in the future, and that point would no doubt be brought to his attention. If he then wilfully continued to include certain items, then I should be happy to go along with the wording of the Bill as it stands. The man would only be asked to take out a matter which related to security or intelligence and which clearly would cause difficulties because it disclosed some secret operations or indicated a place of work, or something of that nature, which was connected with those services. Matters which are quite ordinary for people in other departments are matters of secrecy where those services are concerned. Therefore, they have to be dealt with in a section which is separate from the rest of the Bill. That is the one with which we are now dealing and at which the amendment is aimed.
I certainly do not agree with this amendment, although I understand the reason for raising the matter. It has given me the opportunity to remind the Committee that over a year ago and before the White Paper appeared, I urged the Government to put these services in a separate section and deal differently with them. In addition I said that at the time of recruitment it should be made absolutely clear to entrants their obligation of silence. I do not suggest that I persuaded the Government. I simply say that I am very happy that the Government, at the time that I spoke—namely, 16th March—were coming to the same conclusion. It is only courteous that I should now say again to the Government that I believe that they are doing the right thing and that this clause is of a different kind from others with which we shall deal later in the Bill.
6 p.m.
Lord Dacre of Glanton: I wish to support this amendment basically for the same reasons that have been advanced by the noble Lord, Lord Hutchinson of Lullington. Frankly, this blanket veto is absurd and unworkable. I should declare an interest. I am a former member of the intelligence service. As such, I suppose I fall under the ban. I have only my own experience to draw on. Former members of the intelligence service are called upon frequently, quite publicly and openly, to give an account of events—a long time ago, admittedly. But there is no terminus in the clause; there is no 30-year rule. Members are banned for ever. I am afraid however that we do not pay any attention to that ban. Let us face the facts.
A few weeks ago I was invited to give an address to a thoroughly respectable body about intelligence matters during the last war. I had some doubts at first about whether I should so so. My doubts were removed when I found that the previous address had been given by no other than the noble Lord, Lord Franks. I knew that I could not be in any better company. So I talked to that group of people. Among them I noticed many distinguished former ambassadors, senior civil servants and respectable academics. I suppose that when I received the invitation the proper procedure would have been to apply to the head of the department representing the
940
one of which I had been a member 40 years ago. However, it would perhaps have taken some time to follow through. That kind of invitation is being proffered all the time.
When the edges of the law are eroded in this way by constant pressure, the law itself comes into disrepute. There is an excellent periodical of a high scholarly standard, published quarterly and now in its fourth year, called Intelligence and National Security. Many of the articles it contains are written by former members of the intelligence service. I do not know whether they all obtain the necessary clearance but I have reason to believe that they do not. This happens in broad daylight, everyone knows about it and nobody minds. We are not people such as Peter Wright. The writers of the articles are all responsible people. What is the point of having a ban which will not be observed? None of those people will be prosecuted. I know that perfectly well. I do not expect to be prosecuted myself, although perhaps I shall be after this.
The plain fact is that if this legislation comes into force it will be eroded constantly at the fringes all the time. Moreover, it is reactionary in comparison with the existing position. On 12th January 1978 the then Foreign Secretary, Dr. David Owen, made a statement in the other place in which he gave an assurance that former members of the intelligence service had a limited freedom to write and express themselves on these subjects. I shall quote his words from Hansard:
"Those who gave the undertakings of reticence"—
that is to say, those people who had accepted the obligation of perpetual secrecy—
"are now absolved from them to the limited extent that they may now disclose the fact that they worked on or used material based on intercepted radio messages of the enemy armed forces. They may, for example, acknowledge having worked as interceptors, cypher breakers, distributors or users of this material, and may reveal what they know of the use made of it in the conduct of the war". [Official Report, Commons, 12/1/78; col. 829.]
That was a limited freedom given by the Foreign Secretary at that time. This clause will abolish that freedom. Therefore, to that extent, it is retrogressive. I agree that generally speaking this is a liberal measure. I approve the Bill in itself as being a gesture of liberalisation. However, I think that it is retrogressive and I shall vote in favour of the amendment. I hope that other members of the Committee will do so too.
Lord Renton: I hope that I can set at rest some of the fears expressed by my noble friend Lord Dacre of Glanton. Let us take the lecture that he mentioned, or any lecture that he may wish to give in the future. Within the terms of the clause all that he has to do is obtain lawful authority. On the wording of the clause, which relates to the disclosure of any information and so on, I wish to remind the Committee that we were taught—and the knowledge of the noble Lord in this respect must be far greater than mine, derived as it was from only six years' experience in the army during the war— that security consisted in building up a big picture from a very large number of small pieces. Any little piece of information could add considerably to the picture. There were many little bits of information which

941
added hardly anything in themselves but each was important in building the picture. Therefore if we are to have this amendment, what will happen within the security and intelligence services is that instead of every piece of information being important, there will be two categories of information: damaging and non-damaging. In my opinion that would make a nonsense of security. That is my first objection to this amendment.
My second objection is that the word "damaging" is ambiguous. Does it mean in a particular case coming before a jury that the prosecution would have to prove that the disclosure of the piece of information did in fact damage; or would it merely have to prove that it was potentially damaging? We are left in the dark about that. I do not think that the noble Lord, Lord Mishcon, who is an exceedingly shrewd lawyer, would wish to redraft it in such a way as to force upon himself a decision as to which of the two possible meanings it would have.
Lord Mishcon: I am grateful to the noble Lord, Lord Renton, for allowing me to give an explanation in view of the fact that he has called upon my name.
Clause 2 of the Bill states:
"A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he makes a damaging disclosure".
Under the provisions of this Bill, that matter would have to be left to the jury unless he intends when we reach Clause 2, under his argument, to try to omit the word "damaging" because it is impossible for the jury to decide.
Lord Renton: At first sight that is a very fair point for the noble Lord to have made. However we are not dealing here with damage to defence. I can well see that in relation to defence, disclosure which was potentially damaging can be just as dangerous as disclosure which did in fact damage. But in relation to security surely this is not a distinction which ought to be made, bearing in mind that all information relating to security is potentially important.
Lord Hutchinson of Lullington: I am grateful to the noble Lord, Lord Renton. If one reads Clause 1(4) one finds that "damaging" is spelt out. Clause 1(4)(a) states:
"it causes damage to the work of, or any part of, the security and intelligence services".
Clause 1(4)(b) states:
"it is of information or a document or other article which is such that its unauthorised disclosure would be likely to cause such damage".
The jury would therefore have to decide, according to how a person was charged, whether it came under paragraphs (a) or (b). It is spelled out in the Bill.
6.15 p.m.
Lord Renton: Again a very fair point has been made which deserves an answer. I doubt whether I am qualified to answer except to say that that is not a reference to subsection (1) to which this amendment refers. Perhaps one of my noble friends on the Front Bench can explain why in subsection (3) we refer to
942
damaging disclosures but in subsection (1) we do not. I should have thought that subsection (1) is right as it stands, and I do not propose in answer to this question to elaborate upon that. I am saying that to introduce in subsection (1) a reference to damaging seems to me to confuse the matter.
One should also consider how this would be put to a jury. If the case is brought under subsections (3) and (4) the matter would have to be put to the jury in the way that would arise if the amendment were accepted under subsection (1). However, let us consider how it would apply if the amendment to subsection (1) were made. The burden would be upon the prosecution to prove that it was damaging. We do not have that explained, even in Amendment No. 5. which has been discussed with this amendment. Therefore the prosecution would prove its case presumably by getting a member of the security and intelligence services to say why it was actually or potentially damaging. I do not know whether the defence would call a retired member of the security service to give evidence to say, no, it was not damaging. However, I can see that we would reach a position of some difficulty when it came to trying to assist the jury. It is far better under subsection (1)—I am not dealing with subsections (3) and (4)—that the jury should be left with the simple issue of whether, without lawful authority, the defendant had disclosed any information, and so on. For that third reason I too am opposed to this amendment.
Lord Hemingford: At issue here is whether a distinction is to be made in the approach adopted for a member of the security intelligence services and that adopted for someone who has been a Crown servant or government contractor.
The purpose of this amendment would be to put both those types of people on the same footing whereas the Bill at the moment puts them on different footings. Most Members of the Committee who have opposed the amendment have talked of their hope and expectation that such and such would be the outcome. We feel that we should not leave it to hope. We should pin it down more precisely.
Lord Harmar-Nicholls: The noble Lord who has just spoken clarifies in my mind the fact that I cannot accept the amendment on the basis of the argument we have heard in the short debate so far. There ought to be a difference between contractors and members of the Civil Service, and those who are employed as security and intelligence officers.
Lord Hemingford: Perhaps I may say that we are not only talking about contractors but also Crown servants.
Lord Harmar-Nicholls: There ought to be a difference. That is the point that we should keep in mind when we are examining the merit or demerit of this amendment. My noble friend made the point that this blanket cover that it is suggested ought to be amended applies only to security and intelligence personnel who, when they take it on, realise the special responsibilities that will be theirs in that service.
Lord Mishcon: I do not want to keep bobbing up and down, but the Committee is always very kind. The noble Lord, Lord Harmar-Nicholls, will, I am sure, realise the absurdity in cases where a member of the intelligence service is talking to a Minister responsible for security. That Minister, defined in the Bill as a Crown servant, makes a disclosure which is an offence under the Bill. In his case the prosecution would have to prove that it was damaging. This is covered by subsections (3) and (4). The poor member of the intelligence service, if he made the disclosure direct, would be guilty whether or not the disclosure was harmful. If the noble Lord can think of a more Alice-in-Wonderland situation than that, I invite him to give it to the Committee.
Lord Harmar-Nicholls: I am always terribly impressed with the vocabulary of the noble Lord, Lord Mishcon. He referred to the "poor" intelligence officer. I should refer to him as the important intelligence officer and security man because he is carrying the load and the risk which is much greater than is likely to be carried by the contractors or the Crown servants who do not come into that category. A minute or two ago the noble Lord, Lord Hutchinson, again using this emotive language, put me on the alert. He spoke about a "mature democracy" which would not do this and that. I hope that a mature democracy will be really mature when it is prepared to take common sense into account as well.
I understand the points made by the lawyers in this debate. The purists in law ought to be concerned about the niceties and about what could or could not happen in extreme circumstances. That is their duty and their value. That was why I listened to them. But I do not always accept their purist attention to those niceties as necessarily carrying out what we require to be carried out. We want to be certain that the people who carry the great risks because of the special job that they have ought to be recognised and put in a category whereby that can be dealt with.
When my noble friend Lord Dacre was giving his lecture the other day, knowing his great reputation (which I admire very much) I should be surprised if he had not done some considerable preparation before he used the words that he did in that lecture. I should not have thought that it was a great hardship, bearing in mind the possible risks of a slip of the tongue, because of his connection with the service, whether it was 40 years ago or not. I should not have thought that it was asking too much for him to take advantage of the facilities to check up where there may be that risk. He would with all his other points, so why not with that one?
If one had listened to the debate that we have had thus far and if one came to a conclusion on it as a layman, which is all I can do, I do not think one would conclude that the danger comes from the law as expressed by the noble Lord, Lord Mishcon. The danger that causes public disquiet is the way in which the law is used eventually. The noble Lord, Lord Mishcon, is so skilled in putting up what could be the argument against this case by talking of it in honeyed terms and he then rather undermined the
944
force of the objection. It is important to know that, given the blanket protection—which I agree with my noble friend Lord Alexander should be there in these situations—that protection is not automatically pushed to the ultimate. The Attorney-General and others have to take these matters into account and they would not allow these extreme things, the cups of tea syndrome and the others, to happen. If they did allow them to happen that would not be a criticism of the law, but a criticism of the Attorney-General or the people in official positions as watchdogs in not allowing common sense to be included in the application of the law.
I am satisfied on the balance of the debate as I have heard it thus far, that it would not be good if it were to allow the blanket protection to be diluted by the word "damaging" which, as my noble friend said, cannot easily be described in any case.
Lord Belstead: The noble Lord, Lord Mishcon, skilfully endeavoured to drive a wedge into the arguments that have come from this side of the Committee by making the point that it would be absurd, as the noble Lord saw it, when a member of the security services was talking, let us imagine, to the Minister with responsibility for the security services and there was trouble as a result of that conversation. Thus the member of the security services could be accused of an absolute offence under Clause 1(1), but the Minister would find that he had the benefit of having a harm test under Clause 1(3) and (4). When we come quite soon to the amendments on the Marshalled List dealing with notification, I think my noble friend Lord Ferrers will be saying that it is certainly the Government's intention that a Minister of that kind will be notified and will therefore fall under the bracket of Clause 1(1).
The noble Lord, Lord Mishcon, was quite right to make the point, but I am also justified in giving a reply, not just for the sake of a reply, but because it shows that the Government believe that it is essential to expect and require that those to whom some of our most sensitive secrets are entrusted do not make unauthorised disclosures about their work or the work on which they were once engaged.
Lord Mishcon: I hope that the Leader of the House will forgive me. I used the words "Alice in Wonderland" before, but he realises that the Minister he is talking about would have to serve the notification and he would therefore have to serve it upon himself.
Lord Belstead: This is a matter to which we shall come in a little while. It is quite important that, as in another place, in this House we put on record the Government's intentions about notification, precisely for the reason that the noble Lord has given me across the Table.
To give a signal, as these amendments do, that it is acceptable to make such disclosures without authority, in certain circumstances constitutes a risk which I cannot advise the Committee to take. I was grateful to my noble friends Lord Campbell of Croy, Lord Renton and Lord Harmar-Nicholls for clearly bringing out the point that when a member of the

945
services breaks the trust placed in him he does not just disclose information—he undermines the trust and confidence on which the work of the service depends; the confidence of those who provide it with information; the confidence of members of the services in each other; and the confidence of the public in the ability of the services to protect them. People in this country and abroad have a right to expect that what they tell the security and intelligence services and any help they give, will not become common currency either now or in the future.
My noble friend Lord Renton talked about the gathering of intelligence being the gathering of small pieces of information to make up the big picture. Without that confidence the security and intelligence services finally will find themselves unable to protect us. Anything which weakens that and which calls it into question, lessens the protection that we must have. That is why we believe that the interests of this country are bound to be damaged every time a member of the services disregards his duty and breaks the trust placed in him.
There is nothing new in this approach. Members of the services and others working closely with them have always recognised that they work in an area where any unauthorised disclosure is a most serious matter. My noble friend Lord Campbell of Croy, whenever he speaks on this subject, always makes the point that it must be right that any member of the services coming into the service for the first time must always be warned that that is one of the absolutely fundamental terms and conditions of the service which that person is joining.
I was interested to note that, for the reasons which he deployed, my noble friend Lord Alexander of Weed on also came down against the amendment and in favour of having a blanket prohibition in respect of Clause 1(1). My noble friend put forward a most interesting point about the desirability of my right honourable friend the Prime Minister referring extreme cases of iniquity to the Security Commission. I can give no commitment as to when in the future the Security Commission might be called upon to investigate and report upon the circumstances in which a breach of security is known to have occurred. However, my noble friend Lord Alexander was absolutely right to remind the Committee of the availability of the Security Commission. The record shows that since 1979 the Government have not been slow to refer relevant matters to the commission. The staff counsellor was appointed following consideration of the Security Commission's report in the Bettaney case.
Finally, I urge Members not to send a signal from the Committee that the amendment means that, rather than trust being the essence of a person's work in the security and intelligence services, somehow it does not always matter and it all depends. What it depends on is critical to the effectiveness of the security and intelligence services. It is vital that their members should be confident that they can work in the secrecy on which so many lives and the safety and security of this country depend. The security and intelligence services can work effectively on no other terms and I ask Members of the Committee not to support the amendment.
Lord Mishcon: The Committee will not welcome a lengthy answer to what has been said by the Leader of the House. He has deployed perfectly fair arguments, as have other Members who have particpated in the debate. However, I should like to emphasise in short sentences the reason for my hoping that the Committee will pass the amendment.
First, one does not wish to have an absurdity upon the face of a Bill passed by this Committee. The absurdity is that the issue relates not only to existing members of the security services but also to past members. The noble Lord, Lord Dacre, who is experienced in such matters, gave examples of the absurdity of putting on the face of the Bill an absolute offence, so that any disclosure of any kind in regard to matters relating to the intelligence service becomes a criminal offence. My answer to those Members who have mentioned the Attorney-General is that I am not talking about whether a prosecution will occur but about whether a criminal offence is being committed and whether, in such circumstances, somebody must say, "I am awfully sorry, I cannot even tell you the years during which I was a member of the intelligence service. I believe that it would be an offence because it is a disclosure in regard to the intelligence services". Indeed, it would be, as would any single detail.
I mentioned the fact, as I believed I was entitled to do, that in the subsequent subsections of Clause 1 a Minister would be in the situation of committing an offence only if the disclosure was harmful. I am not dealing with the point about notification, which was a perfectly proper point for the Leader of the House to make. However, I cannot resist the temptation of telling him that, in the circumstances of which he spoke, the Minister would have to serve the notice on himself and I should love to be a witness to such an event.
I raised that issue in answer to the noble Lord, Lord Renton, because I wished to point out that it cannot be difficult to prove damage, if damage must be proved, in regard to subsections (3) and (4) of the clause.
From my point of view, further discussion will not be of advantage. The arguments have been deployed and I believe that the opinion of the Committee should be tested.
6.35 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents 85; Not-Contents, 120.

DIVISION NO. 2

CONTENTS

Addington, L.

Carmichael of Kelvingrove, L.

Airedale, L.

Carter, L. [Teller.]

Amherst, E.

Cledwyn of Penrhos, L.

Annan, L.

Cobbold, L.

Ardwick, L.

Dacre of Glanton, L.

Barnett, L.

David, B.

Blackstone, B.

Davies of Penrhys, L.

Bonham-Carter, L.

Dean of Beswick, L.

Brooks of Tremorfa L.

Donoughue, L

Callaghan of Cardiff, L.

Dormand of Easington, L.

947

Elwyn-Jones, L.

Mishcon, L.

Ewart-Biggs, B.

Monson, L.

Falkender, B.

Mountevans, L.

Foot, L.

Mulley, L.

Gallacher, L.

Ogmore, L.

Galpern, L.

Phillips, B.

Gladwyn, L.

Ponsonby of Shulbrede, L. [Teller.]

Grey, E.

Grimond, L.

Prys-Davies, L.

Hampton, L.

Ritchie of Dundee, L.

Harris of Greenwich, L.

Robson of Kiddington, B.

Hatch of Lusby, L.

Rochester, L.

Hemingford, L.

Russell, E.

Hutchinson of Lullington, L.

Seear, B.

Irving of Dartford, L.

Serota, B.

Jay, L.

Stewart of Fulham, L.

Jeger, B.

Stoddart of Swindon, L.

Jenkins of Hillhead, L.

Strabolgi, L.

Jenkins of Putney, L.

Taylor of Blackburn, L.

Kilbracken, L.

Taylor of Gryfe, L.

Kirkhill, L.

Thomas of Swynnerton, L.

Lawrence, L.

Tordoff, L.

Llewelyn Davies of Hastoe, B.

Turner of Camden, B.

Tweeddale, M.

Lockwood, B.

Underhill, L.

Longford, E.

Vernon, L.

Lovell-Davis, L.

Wallace of Coslany, L.

McGregor of Durris, L.

Whaddon, L.

McIntosh of Haringey, L.

White, B.

Mackie of Benshie, L.

Williams of Elvel, L.

McNair, L.

Winchilsea and Nottingham, E.

Mais, L.

Mason of Barnsley, L.

Winstanley, L.

Mayhew, L.

Zuckerman, L.

NOT CONTENTS

Aldington, L.

Greenway, L.

Alexander of Tunis, E.

Gridley, L.

Alexander of Weedon, L.

Halsbury, E.

Allerton, L.

Harmar-Nicholls, L.

Arran, E.

Havers, L.

Balfour, E.

Henley, L.

Barber, L.

Hertford, M.

Beloff, L.

Hives, L.

Belstead, L.

Holderness, L.

Bessborough, E.

Home of the Hirsel, L.

Blake, L.

Hooper, B.

Blatch, B.

Jenkin of Roding, L.

Boyd-Carpenter, L.

Johnston of Rockport, L.

Brabazon of Tara, L.

Joseph, L.

Brougham and Vaux, L.

Kaberry of Adel, L.

Butterworth, L.

Kimball, L.

Caithness, E.

Lauderdale, E.

Campbell of Alloway, L.

Layton, L.

Campbell of Croy, L.

Liverpool, E.

Carnegy of Lour, B.

Long, V.

Carnock, L.

Lyell, L.

Clitheroe, L.

Macleod of Borve, B.

Colnbrook, L.

Malmsbury, E.

Constantine of Stanmore, L.

Margadale, L.

Marley, L.

Cottesloe, L.

Maude of Stratford-upon-Avon, L.

Craigavon, V.

Craigmyle, L.

Merrivale, L.

Crickhowell, L.

Mersey, V.

Croft, L.

Milverton, L.

Cross, V.

Monk Bretton, L.

Davidson, V. [Teller.]

Mottistone, L.

Denham, L. [Teller.]

Munster, E.

Dundee, E.

Mutton of Lindisfarne, L.

Eden of Winton, L.

Nelson, E.

Elliot of Harwood, B.

Newall, L.

Elton, L.

Norfolk, D.

Erne, E.

Norrie, L.

Faithfull, B.

Northesk, E.

Ferrers, E.

Nugent of Guildford, L.

Fraser of Carmyllie, L.

Oppenheim-Barnes, B.

Fraser of Kilmorack, L.

Orkney, E.

Gardner of Parkes, B.

Orr-Ewing, L.

Goold, L.

Penrhyn, L.

Gray of Contin, L.

Peyton of Yeovil, L.

948

Pym, L.

Sudeley, L.

Reay, L.

Suffield, L.

Rees, L.

Swinfen, L.

Renton, L.

Teviot, L.

Renwick, L.

Teynham, L.

Rodney, L.

Thomas of Gwydir, L.

Rollo, L.

Thurlow, L.

Romney, E.

Trafford, L.

Saltoun of Abernethy, Ly.

Trefgarne, L.

Sanderson of Bowden, L.

Trumpington, B.

Sharples, B.

Vaux of Harrowden, L.

Skelmersdale, L.

Whitelaw, V.

Southborough, L.

Windlesham, L.

Stoddart of Leaston, L.

Wise, L.

Strange, B.

Wyatt of Weeford, L.

Strathclyde, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.43 p.m.
[Amendments Nos. 3 to 5 not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 6:
Page 1, line 27, after ("causes") insert ("serious").
The noble Lord said: We have now reached another very important amendment to this Bill and a very important principle indeed. It is the introduction of the word "serious" in this part of the Bill. It may very well be for the convenience of Members of the Committee that participants also deal with other parts of the Bill, Clause 1 having now been completed.
In my submission there are three reasons for this amendment to be accepted. First, when the Leader of the House made earlier references to the Franks Committee and remarked upon the findings of that committee, he expressed his obvious respect for those findings. As I shall show to the Committee, the Franks Report keeps on talking about "serious damage" as being the proper medium for dealing with offences under this Bill other than those covered by Clause 1.
The second reason which I wish to advance to the Committee for agreeing to this amendment is that when great consideration was given by the Government to this matter of Section 2 on the previous occasion when legislation was before us— namely, in the 1979 Bill—"serious harm" was the element which was always employed. Again I am not dealing with matters covered by Clause 1, with which we have already dealt.
Thirdly, ministerial statements have been made recently and in the other place and in articles written by the Secretary of State where, on various occasions, he or Ministers have talked in terms of "serious harm" when they have mentioned the word "harm" or "serious damage" or "seriously jeopardising".
Perhaps I may go immediately to the Franks Report. I promise the Committee that my quotations will be as brief as I can make them but there are many references in the Franks Report to the need for this to be a "serious" matter. I suppose that I should refer formally to the fact that I am dealing with the report of the departmental committee on Section 2 of the Official Secrets Act 1911, Cmnd. 5104. Paragraph 110 of the report states (and I am

949
only omitting words which are unnecessary in regard to the point which I am making):
"We therefore reject the notion that criminal sanctions should be retained for all official information which a Government may reasonably wish to withold … The additional protection of the criminal law should be reserved for that official information which it is most important to protect".
Paragraph 117 states:
"strong measures are clearly justified in preventing serious injury to the nation. It is less clear that the criminal law must be brought in to reinforce other means of protection where the possible injury is of a less serious nature. In our view the appropriate test"—
and again I am leaving out words which do not matter—
"in relation to national security, is that unauthorised disclosure would cause serious injury to the nation".
Paragraph 118—and again I leave out the words which do not matter—states:
"We do not, however, believe that the restriction of the criminal law to disclosures causing serious injury to the nation would involve significant risks. Restricting the scope of criminal sanctions in this way seems to us preferable to their retention for a wide range of less important information, which can be protected by other measures".
My last quotation from that report is from paragraph 119 which states:
"We believe that most of those who have given evidence to us, and most reasonable people, would accept as a proper basis for the employment of criminal sanctions the unauthorised disclosure of official information which would be likely to cause serious injury to the security of the nation or the safety of the people. If criminal sanctions are justified at all, they are justified for this purpose. If they are to be reserved for what is most important, they should not go any wider. We have therefore adopted this as our touchstone".
I next move to the second line of argument which was the 1979 Bill. "Serious injury" was the term adopted there and perhaps I may quote Clause 1(1)(a) of the Protection of Official Information Bill which stated:
"This Act applies to information relating to defence or international relations, the unauthorised disclosure of which would be likely to cause serious injury to the interests of the nation or endanger the safety of the citizens of the United Kingdom and colonies."
Indeed I ought to say that in July 1988 Sir Leon Brittan—Mr. Leon Brittan, as he then was—when Home Secretary, said:
"I do not see any justification for what amounts to a tightening up of proposals that were originally put forward in 1979".—[Official Report, Commons, 22/7/88; col. 1430.]
In other words, Mr. Brittan was saying, when Home Secretary, as recently as July 1988 that he did not want to do anything that was less libertarian, if I may put it that way, than was in the 1979 Bill that had an unfortunate fate.
I next turn—and this is possibly the most important of my submissions to the Committee—to reasoned statements that were made by Ministers in regard to this very Bill. This was how Parliament and the public were told about things relating to this Bill. The Home Secretary, Mr. Douglas Hurd, said in February last that,
"it will be for the jury to decide whether a disclosure caused or was likely to cause the form of serious harm to the public that the Bill specifies".—[Official Report, Commons, 2/2/89; col. 469.]
In other words, the Home Secretary was saying that these matters relate to "serious" harm and not just to harm.
Mr. John Patten, the Minister at the Home Office, said in December 1988:
"The Government do not accept that the criminal law is the right place to balance one Crown servant's perception of the public interest against the specific and serious damage that his disclosure has caused".—[Official Report, Commons, 21/12/88;col. 540.]
The same Minister, at col. 541, said that,
"we have heard no coherent argument why people who disclose information knowing that it will do serious harm. to the public interest should not be prosecuted".
Mr. John Wakeham, the Leader of the other place, said in February—I am leaving out needless words
— "The Bill is … aimed at protecting, and protecting effectively, official information whose unauthorised disclosure would cause a serious degree of harm to the public interest". [Official Report, Commons, 13/2/89, col. 71.]
The Home Secretary, Mr. Douglas Hurd, said, and again I am leaving out needless words:
"The Government's approach … has been to select from the whole mass of Government information that which needs to be protected, and then to define what is in statute on the basis of whether disclosure of that information could do serious damage to the public".—[Official Report, Commons, 15/2/89; col. 388]
My final quotation is from Mr. Douglas Hurd, the Home Secretary, in an article in the Daily Telegraph only a few weeks ago, on 18th February 1989:
"Under the new Bill the prosecution must in most cases prove to a jury that serious damage has been done in terms defined in the Bill".
I hope that I have within a narrow compass of words dealt with the three reasons why I say that "serious" damage, "serious" injury, and so on, must be brought into this Bill. I repeat, ministerial statements have been made, it is in the 1979 Bill, and Franks recommended that it should be limited in criminal sanctions to those cases where the word "serious" is included. I beg to move.
Lord Grimond: I support the extremely able exposition of this amendment which we have just heard from the noble Lord, Lord Mishcon. I have listened to the debates on all these amendments and it seems to me that there are three serious ways in which security is damaged. One of course is from traitors within the Services which this Bill does not deal with; but we are apt to forget that that is one of the main troubles with security and it is strange how that is tolerated. I was personally told by Donald Maclean that he was totally unfit to be in the Foreign Office—a sentiment with which I agree—but he was pressed by the Foreign Office to remain.
Secondly, there is the matter of leaks. As has been said, the main source of leaks—though perhaps not the most important—is from Ministers. They leak all day and every day about everything. That presumably will not be cured by this Bill. Thirdly, there is the damage done to the public services and to the law by the ridiculous pursuit of unimportant breaches. Few cases have done the security and law of this country more harm than the Wright case. The result was that it got far more publicity than it deserved or would have received had it been sensibly treated.
The noble Lord, Lord Mishcon, rightly inundated the Committee with quotations to show that everyone who has seriously discussed this matter has

951
insisted on the word "serious". It is certainly true that if this Chamber passes a Bill whereby every trivial disclosure of information ends up in a criminal prosecution it will make itself an ass, and will do even more damage to security and to the law. It will do no good whatever to those people who work in public service. That was amply demonstrated in the last debate; and it has been amply shown in this debate that if you put in the word "serious" you may limit the damage which otherwise we would be doing in appearing to trivialise criminal matters by applying them to disclosures which may be of minimal importance.
Lord Boyd-Carpenter: The noble Lord, Lord Grimond, in his usual agreeable way, indicated the view which he takes rather generally on the Bill. I hope the Committee will allow me to confine my few remarks to the amendment. Here we are concerned with damage to the work of or any part of the security and intelligence services.
I shall not weary the Committee by repeating the arguments; my noble friend Lord Renton spelt them out impressively. We discussed on an earlier amendment that intelligence work can be seriously damaged by the accumulation of large numbers of apparently small and unimportant facts which can be put together by hostile agencies to construct a considerable and clear picture of the intelligence operations. That is exactly what we are concerned with here.
A particular disclosure about the work of the security and intelligence services may not seem, taken by itself, to be particularly important. It may not be; but if there are a number of them—and each have to be considered separately from the point of view of this amendment and the words of the clause—a very damaging picture of the working of the security services will be disclosed, and disclosed to hostile eyes.
Therefore, it seems to me that it is important here, where we are concerned with disclosures which relate to the working of the security and intelligence services, that one should have the firmer, and indeed tougher, prohibition of disclosure. Disclosures can be of themselves unimportant but cumulatively can be extremely important; and that is what this clause is designed to deal with. Therefore, I hope that the Committee will not accept the amendment.
7 p.m.
Lord Hutchinson of Lullington: I should like to support the amendment. Perhaps I may deal with the comments made by the noble Lord, Lord Boyd-Carpenter. Those of us who have spent a great deal of time in court in connection with the Official Secrets Act know the situation that the noble Lord has put forward as the jigsaw syndrome; namely, that everything which is totally unimportant can be fitted together, and that if you add unimportance to unimportance to unimportance, you end up with something which is important. One has been through that experience time after time, day after day, in court. Juries laugh and throw it out. The jigsaw
952
syndrome, if I may say so with the greatest respect, does not hold water when one comes to deal with these matters seriously as prosecutions.
Curiously enough, the noble Lord said that small matters can be seriously damaging. So he fell into the very thing that we are putting forward. The whole point of this amendment is to avoid the nonsense of Section 2, which makes damaging anything that is disclosed. The point of using the word "serious" is to distinguish it from the rubbish—the cups of tea and all that. The jury and everybody else should ask when the disclosure is made: is it seriously damaging? The question is not whether it is damaging but whether it is seriously damaging.
I am reluctant to quote to the Government once again what was said 10 years ago in the White Paper. I should like the Minister to tell us why there has been an extraordinary volte face by the Government and why their views then have been thrown aside when talking about defence and international relations. The further amendments introduce the word "seriously" into Clauses 2 and 3. The White Paper stated:
"The Government believes, however, that the scope of the criminal law in this field must be restricted. The Government's present view is that, despite the arguments rehearsed"—
when they previously went into the question of serious or not serious—
"it would be best to follow the recommendation of the Franks Committee by adopting the test of 'serious injury' in the defence and international relations field. DEFENCE-CONFIDENTIAL would not be extended to information concerned with international relations outside the defence field and it would not be extended to defence information which would be no more than 'prejudicial' to our interests if disclosed. This can only be a matter of balance and judgment".
The very point being made in this amendment was set out in far better words than I could ever use.
The ludicrous situation can be seen if one looks at Clause 2(2) dealing with damaging disclosure for the purposes of subsection (1). It states that,
"a disclosure is damaging if it damages the capability of, or any part of, the armed forces of the Crown to carry out their tasks."
One of the tasks of the armed forces of the Crown is to be present at Earls Court every year for the Royal Tournament. To disclose something which would upset the activities at Earls Court would fall within this clause. Unless the word "seriously" is included, the situation becomes completely farcical. Thousands of things can be disclosed which damage the capability of the armed forces to carry out their tasks.
The same applies to international relations in Clause 3(2) which states that disclosure is damaging,
"if it jeopardises the interests of the United Kingdom abroad or the interests of the United Kingdom".
All kinds of things will jeopardise your relations if you disclose something or leak something that will upset your relations with another country. But it must be serious. If it is serious, then it matters.
I should like the Minister to comment on the fact that the word "seriously" is used in Clause 2(2)(b) which states that,
"a disclosure is damaging if, otherwise than as mentioned in (a) above, it jeopardises the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests".

953
The position is exactly the same in Clause 3 which says that disclosure is damaging,
"if it jeopardises the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests".
Why on earth is the word "seriously" used in those two instances and not in the other? What we are asking for in this amendment is straightforward and total common sense. The noble Lord, Lord Harmar-Nicholls, mentioned the word "common sense". Even a lawyer once or twice puts forward something which is commonsensical. I suggest to the noble Lord that this is a perfectly commonsensical amendment which is intended to make the law commonsensical, and intended to make it respected.
Lord Trafford: I have a doubt about this amendment in two senses. First, I am not sure that to qualify the word "damage" is helpful to anyone in deciding whether whatever they might say is serious. If what is said will be damaging in any way, then it should not be said. If there is a choice between damage and serious damage, they may make the wrong choice, thinking something was not serious, when it was later held to be serious. In that sense this amendment might not have the effect that its proposers intend.
The second point I should like to make is quite different. Under Clause 9 no prosecution can be brought except with the agreement of the Attorney-General. Therefore, it is not likely that the kind of trivial case, to which the noble Lord, Lord Hutchinson, referred when speaking of the common sense type of situation, is likely to be brought anyway because the procedures under Clause 9 would not allow it. Therefore, is this amendment either necessary, relevant or helpful?
Lord Harmar-Nicholls: I think that for 99 per cent. of the time lawyers apply common sense. I am criticising the one per cent. of occasions when they do not, and I am suggesting that this is one such occasion.
The noble Lord, Lord Hutchinson, is fascinating to listen to; but his examples always alert me to look again at what is behind the main point of his argument—in this case the examples of the Tattoo and the Royal Tournament. I do not think that we should take into account whether or not the damage ought to be serious. We all agree with that. Nobody would want anyone to come within the ambit of the criminal law unless it was something serious. It must be serious before they suffer any pain or indignity arising from it. However, at what point does one identify what is serious or what is not serious? I do not think that it is at the point of the words in the statute. I believe that our function, being statute makers, is only to say whether damage has been done. If, according to statute, there has been damage, there are other forces that flow from that which decide whether it is serious or not.
There is the example of the 30 miles per hour or the 40 miles per hour speed limits. We know perfectly well that 99 out of 100 motorists break that law. Perhaps they suffer some internal feeling of indignity when they are breaking the law. The police
954
do not pursue the fact that the 30 miles an hour limit is broken unless people drive at 37, 38 or 39 miles an hour. They use their judgment. In this case the judgment will be about "damage". That is part of the law which we shall eventually put onto the statute book.
We will create unnecessary problems for people who come after us if at this stage we insert into the Bill anything beyond "damage". If something is damaged the matter should be looked at. If someone throws a ball into my garden and breaks a rose bush, that is damage. Whether or not I take action under the law to have someone punished for breaking my rosebush is another matter. One does not. One cannot put into the words of the statute that kind of detail. The provision should specify that damage has been done. It is then a matter for the Attorney-General or for whoever decides whether further steps should be taken and then for the jury at the end of the day to decide how serious or not serious the harm has been.
Lord Elwyn-Jones: As a former Attorney-General perhaps I may say that to put the reliance for this matter on the Attorney-General when the whole weight of opinion that has been expressed today and what has been said by Ministers indicates that there ought to be "serious damage" is a curious idea. If that is the conclusion of the Committee, please do not take shelter behind the fact that the Attorney-General, being a sensible man, would bring proceedings only in respect of serious damage. That is the most tortured logic if I may say so.
7.15 p.m.
Earl Ferrers: We have been concerned about whether or not the word "serious" should be inserted into the Bill. The noble Lord, Lord Mishcon, was as usual peculiarly persuasive in suggesting why he thought that the word "serious" would be an improvement. I always have a certain hesitation when the noble Lord, Lord Hutchinson, says, as he did, that this is only a simple and common sense amendment and that it is the kind of amendment which any broadminded person would accept. There is another point of view. The matter is not as simple and as straightforward as the noble Lord puts it.
The Committee would wish to take carefully into account the considerable and in many ways radical step which the Government are proposing to take in introducing a harm test in relation to disclosures about security and intelligence matters. No other government in this country have ever put forward such a proposal. With the exception of members of the security and intelligence services arid notified people—for reasons which we have already discussed—we propose that an unauthorised disclosure of security and intelligence matters by a Crown servant, a government contractor or indeed by anyone else should be a criminal offence only if that disclosure damages or would be likely to damage the work of the security and intelligence services, or was of a class or description which would be likely to cause such damage.
There will be no ministerial certificate to certify that such harm has been caused, as was previously

955
proposed. The prosecution will be required to persuade the jury on the basis of the evidence it can adduce. The jury will be left to decide. The damage will have to be proved to the satisfaction of the jury beyond reasonable doubt. A Crown servant or a government contractor has a defence that he did not know, and had no reasonable cause to believe that his disclosure was likely to have this damaging effect. That is a great change. That is the position which we have reached in this Bill. It is in many ways a brave step and a departure from the past. It was widely welcomed when we proposed it in the White Paper. It is fair to say that it was totally unexpected.
Nobody expected the Government to go this far, but we did. Now the noble Lord, Lord Mishcon, says "Thank you so much for all you have given us and for having gone so far. Will you go a little further?" That is a reasonable view to take but we are considering a series of amendments relating to the harm test in the provision and in later provisions which press us to go further than we have already gone. I hope the Committee will conclude after it has heard the arguments that it would not be right to do so.
Perhaps I may explain how we have gone about our task of providing harm tests in the Bill. In each case we have sought to provide tests specific to the kind of information disclosed—security or intelligence, defence, international relations or foreign confidences. In relation to the disclosure of information relating to security or intelligence, the harm that arises is to the work of the security and intelligence services. We take the view that those who damage that work by an unauthorised disclosure, having good reason to know that that is what they are doing, cause a sufficient degree of harm to this country's interests to require the attention of the criminal law. Damage to the work of the security and intelligence services damages its efforts to protect the security of this country and the safety and well-being of its citizens. That point has been drawn upon both by my noble friends Lord Renton and Lord Boyd-Carpenter. It is not a trivial matter. "Damage" must be real and proven. Inconvenience or embarrassment are not damage.
The noble Lord, Lord Mishcon, quoted many excerpts. The noble Lord, Lord Grimond, said that the noble Lord inundated the Committee with quotations. The noble Lord, Lord Mishcon, made the mistake, which I thought was a curious one for such a person to make, of putting conversational language into legal language. The noble Lord, Lord Hutchinson, did so too. We believe that the harm identified in the Bill is serious. The terms in the Bill, as the Home Secretary has said, define matters which we believe to be serious. These are matters which the whole Bill seeks to address.
Lord Mishcon: Perhaps the noble Earl will with his usual courtesy allow me to correct him. What does he really make of a statement made by the Home Secretary in charge of the Bill as recently as 2nd February in Parliament? He said:
"it will be for the jury to decide whether a disclosure caused or was likely to cause the form of serious harm to the public that the Bill specifies" —[Official Report, Commons, 2/2/89; col. 469.]
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The Home Secretary is saying that it must be left to the jury to decide whether that harm is serious. If we leave the Bill as it stands the direction of the judge must refer to any harm, not necessarily to serious harm. He will say, "If Parliament had meant serious harm, members of the jury, it would have said so". If the amendment is not accepted the words of the Secretary of State to Parliament will not be carried out.
Earl Ferrers: The noble Lord made one speech in which he said that. If he will be good enough to wait a little longer he will see that there is a reason for not accepting that word. The point that I tried to explain to the noble Lord is that in discussion it has been said that all these matters are considered to be serious matters. The noble Lord frowns but this is a fact. We consider that disclosure of information is a serious matter.
The noble Lord is trying to put the word "serious" into the Bill as part of legal language. The result of this is that it would in future be perfectly lawful knowingly to damage the work of the security and intelligence services. That is not a proposition which I believe that Members of the Committee would wish to support. Of course there are different levels of damage which may follow a disclosure. However, they are matters which can be properly reflected in sentencing. The proposition in the amendment is that the work of the security and intelligence services can be damaged without any fear of the criminal law.
I ask Members of the Committee to consider whether it is reasonable to ask a jury to make the distinction between what is damage and what is serious damage to the work of the security and intelligence services. How is the jury, without experience or knowledge of such issues, to make a difficult judgment of that kind? Members of the jury can readily determine whether the work of the services has been damaged, or whether it has not been damaged; but it is quite another matter to ask them to determine whether or not it has been seriously damaged. The degree of seriousness may require the most delicate of judgments.
An assessment of the likelihood of seriousness, which of course any would-be discloser would always have to make, would be as difficult. It would be very difficult for such a person to know, with any confidence, when he stood at risk of the criminal law; and it would be as hard for the jury to come to consistent and equitable decisions. As it stands, the test of harm contained in Clause 1(4) is perfectly clear.
I fear that the result of the amendment would be to encourage disclosures which would damage the security and safety of this country. The fact is that the amendment would allow damage to be done to the work of the security and intelligence services which the proposals under the Bill would not. I ask Members of the Committee to reject the suggestion that any damage should be allowed to be done, whether it was serious damage or any damage at all. I also ask the Committee to reject the suggestion

957
that any damage should be allowed to be done to the work of the security services. That is what the noble Lord's amendment would in fact permit.
Lord Mishcon: I hope that I am not dramatising if I say that I noticed when the Minister, with his usual competence, answered the debate on this amendment that he did so in a style which was faltering. I must say that that is most unlike him. However, I can well understand why he faltered.
The Franks Committee was appointed and, as I said, it was viewed with great respect. Not only was the report accepted on all sides of Parliament, but it was also quoted with great deliberation and favour by the Leader of the House. The committee called upon Parliament in its recommendation to ensure that only serious damage, serious injury and serious harm should be made clear in any legislation as being a criminal offence, and I repeat, only serious.
In 1979 the Government, with all the arguments available which have been brought forward today, decided, following Franks, that they would introduce the word "serious" into legislation. Indeed, they did so in the 1979 Bill in Clause 1. There they talked about serious injury. The ministerial statements which I have quoted—I do not intend to quote them for a third time—made perfectly clear what was to be left to the jury. The jury was to be told, and Parliament were informed, that serious injury and serious damage were the matters which they had to consider. Yet, this afternoon, we listened to arguments—I hope I say this with courtesy—which completely negative Franks, which completely negative government thinking in 1979 (without any reason being given for a change of mind) and which completely negative the ministerial clear statements made to Parliament which can only now be misleading statements in view of the Minister's reply in this debate.
I have no alternative, with some sorrow nevertheless, but to ask for the Committee's view to be taken on the matter. I trust that the Committee will prove worthy of itself by the way in which it votes.
Earl Ferrers: Perhaps I may ask the noble Lord one question. I suppose he realises that if the word "serious" were to be introduced, there would then be two levels of test; namely, one where serious damage has been done and one where just damage has been done. If the word was included in the Bill, we would in fact be saying that a person would be guilty only if serious damage was done, but not if damage was done.
Lord Mishcon: That is precisely what I am saying. Indeed, I am copying the Government in doing so. They introduce in Clause 3(2)(a) precisely that dilemma—if dilemma it be, and I suggest it is not—and I shall quote from that part of the Bill. It says:
"it jeopardises the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests".
There must now be two standards of jeopardy; that is, one of jeopardy according to the Minister, and one of serious jeopardy. Both matters must be decided by a court of law. I wish I could understand the logic behind the question which was addressed to me.
7.26 p.m.
On Question, Whether the said amendment (No. 6) shall be agreed to?
Their Lordships divided: Contents 64; Not-Contents, 95.

DIVISION NO. 3

CONTENTS

Airedale, L.

McIntosh of Haringey, L.

Ardwick, L.

Mackie of Benshie, L.

Blackstone, B.

McNair, L. [Teller.]

Bonhan-Carter, L.

Mais, L.

Brooks of Tremorfa, L.

Mason of Barnsley, L.

Callaghan of Cardiff, L.

Mishcon, L.

Carmichael of Kelvingrove, L.

Monson, L.

Cledwyn of Penrhos, L.

Mulley, L.

Cobbold, L.

Ogmore, L.

Dacre of Glanton, L.

Phillips, B.

David, B.

Ponsonby of Shulbrede, L. [Teller.]

Davies of Penrhys, L.

Dean of Beswick, L.

Prys-Davies, L.

Dormand of Easington, L.

Ritchie of Dundee, L.

Elwyn-Jones, L.

Robson of Kiddington, B.

Ewart-Biggs, B.

Rochester, L.

Falkender, B.

Russell, E.

Grey, E.

Seear, B.

Grimond, L.

Stewart of Fulham, L.

Hampton, L.

Stoddart of Swindon, L.

Harris of Greenwich, L.

Taylor of Blackburn, L.

Hatch of Lusby, L.

Taylor of Gryfe, L.

Hemingford, L.

Tordoff, L.

Hutchinson of Lullington, L.

Turner of Camden, B.

Jay, L.

Tweeddale, M.

Jeger, B.

Underhill, L.

Jenkins of Hillhead, L.

Vernon, L.

Jenkins of Putney, L.

Whaddon, L.

Kilbracken, L.

Williams of Elvel, L.

Kirkhill, L.

Winchilsea and Nottingham, E.

Lockwood, B.

Longford, E.

Winstanley, L.

Lovell-Davis, L.

Zuckerman, L.

NOT CONTENTS

Aldington, L.

Halsbury, E.

Arran, E.

Harmar-Nicholls, L.

Ashbourne, L.

Havers, L.

Balfour, E.

Henley, L.

Beloff, L.

Hertford, M.

Belstead, L.

Hives, L.

Blake, L.

Holderness, L.

Boyd-Carpenter, L.

Home of the Hirsel, L.

Brabazon of Tara, L.

Hooper, B.

Braye, B.

Jenkin of Roding, L.

Brougham and Vaux, L.

Johnston of Rockport, L.

Buttenworth, L.

Joseph, L.

Caithness, E.

Kenilworth, L.

Campbell of Croy, L.

Kimball, L.

Carnegy of Lout, B.

Kinloss, Ly.

Carnock, L.

Lauderdale, E

Clitheroe, L.

Long, V.

Craigavon, V.

Lyell, L.

Craigmyle, L.

Macleod of Borve, B.

Crickhowell, L.

Malmsbury, E.

Croft, L.

Margadale, L.

Cross, V.

Maude of Stratford-upon-Avon, L.

Davidson, V. [Teller.]

Denham, L. [Teller.]

Merrivale, L.

Dundee, E.

Mersey, V.

Dunrossil, V.

Milverton, L.

Eden of Winton, L.

Monk Bretton, L.

Elliot of Harwood, B.

Mottistone, L.

Elton, L.

Munster, E.

Ferrers, E.

Murton of Lindisfarne, L.

Fraser of Carmyllie, L.

Nelson, E.

Goold, L.

Norfolk, D.

Greenway, L.

Nugent of Guildford, L.

Gridley, L.

Orkney, E.

Hacking, L.

Penrhyn, L.

959

Peyton of Yeovil, L.

Strathclyde, L.

Reay, L.

Suffield, L.

Rees, L.

Thomas of Gwydir, L.

Renton, L.

Thurlow, L.

Renwick, L.

Trafford, L.

Romney, E.

Trefgarne, L.

Saltoun of Abernethy, Ly.

Trumpington, B.

Sanderson of Bowden, L.

Vaux of Harrowden, L.

Sharples, B.

Whitelaw, V.

Skelmersdale, L.

Windlesham, L.

Southborough, L.

Wise, L.

Stodart of Leaston, L.

Wyatt of Weeford, L.

Strange, B.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
7.33 p.m.
The Earl of Arran: I hope that the Committee will agree that this is a suitable moment at which to break for dinner. I suggest that we do not return to the Committee stage of this Bill before 8.30 p.m. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to
House resumed.

City of London (Spitalfields Market) Bill
7.34 p.m.
Lord Renwick: My Lords, I beg to move that this Bill be now read a second time. The City of London (Spitalfields Market) Bill is promoted by the Corporation of London who are the owners of the land comprising the Spitalfields wholesale fruit and vegetable market and the market authority. The purpose of the Bill is to provide the corporation with powers to relocate the market, and there are some consequential provisions.
First, I shall advise noble Lords where the present market is and where—if the Bill was enacted and the powers contained in it were exercised—it would move to. Spitalfields Market is to the east of the historic City, a very short walk from Liverpool Street station, but it is in the London Borough of Tower Hamlets. It is the local planning authority, the environmental health authority, the refuse collection authority and the highway authority for Spitalfields. It is not a self-contained site. You can drive through the market area on public roads but I warn you that it might take a long time.
If Tower Hamlets Borough Council had opposed the move of the market which this Bill seeks to authorise, the City Corporation would probably not have promoted it. However, far from being opposed the borough council has prepared a development brief for the market site. It has given planning permission for the development and has entered into a development agreement for it under Section 52 of the Town and Country Planning Act 1971 with developers and the City Corporation. The market would be relocated to a place no more than four miles away to the north-east known as Temple Mills at Hackney Marshes. Again, the relevant local authorities, principally the London Borough of
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Waltham Forest, have given outline planning permission for the development of the wholesale market on the Temple Mills site and do not petition against the Bill.
There is even a third area of land involved in a more indirect sense. That is Stratford wholesale fruit and vegetable market situated about 1.4 miles from the Temple Mills site. Here again the local authority at Stratford—namely, Newham Borough Council—does not oppose the Bill. No doubt Newham has some use in mind for the site of a large, old wholesale market in its area.
I shall now summarise the provisions of this short Bill. Following certain definitions in Clause 2, including a definition of "the new site" at Temple Mills by reference to a deposited map, Clauses 3 and 4 provide for the removal of Spitalfields Market on an appointed day to be decided by the corporation on the giving of at least one month's notice to be published in local newspapers. On the appointed day the Spitalfields Market Acts will apply to the new site in substitution for their application to the present site in Tower Hamlets. I will come to the Spitalfields Market Acts and what they are in a few moments, but basically their existence and the need to apply them to a new market site, with amendments and repeals as necessary, represent the reason why the City Corporation is promoting this legislation.
The market was created by Royal Charter in 1682 and is governed by a series of local Acts set out in Schedule I to the Bill and partially repealed in Schedule 2. The Charter of 1682 and the local Acts are specific to the market at its present location, and only legislation can amend prior legislation. Hence this Bill. Clause 5 provides that not later than 14 days after the passing of the proposed Act, the City Corporation will offer to market traders at Spitalfields and also to market traders at Stratford market accommodation within the new site for them to carry on their businesses. The traders will have a further 28 days after the offer is made to accept or decline.
Clause 6 provides for an increase in maximum fines for traffic offences on the market roadways to be built within the new site at Temple Mills, as compared with the maximum fines on the roadways at Spitalfields. Clause 7 and Schedule 2 repeal various provisions of the Spitalfields Market Acts which are either spent or are otiose and serve no practical purpose to the new site because, for example, they relate to past improvements of and extensions to the existing market site. Clause 8, the final clause of the Bill, is purely formal to the effect that the costs of the Bill shall be met out of the general rate of the City. Having said that, Clause 8 highlights the fact that Spitalfields Market is a City Corporation rate fund property and not an investment property pure and simple. A large sum of money—around £50 million to £60 million—is anticipated to be received by the Corporation of London from the transaction. That would be the premium on the disposal of the Spitalfields site to developers on a long building lease in return for having the developers build a replacement market at Temple Mills.

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This of course has stimulated allegations about capitalism and greed. Basically, there are four answers to these allegations. First, there can scarcely be any commercial development to which profit is not a motive, and the presence of such a motive has nothing at all to do with whether a Bill in Parliament is necessary to implement the approved proposals.
Secondly, if the City Corporation had been wholly cynical, they would have done nothing to Spitalfields (or nothing much apart from minor patching up) and allowed the market there to decline very slowly until they could close the market altogether, selling off parts in the process and avoiding the need to consider providing a replacement market at all. That would be far more profitable in the long run to the corporation than the course they are following. Thirdly, the provision of a wholesale fruit and vegetable market represents a very poor return on capital compared with almost any other use of land in or near central London. If Spitalfields Market is to be relocated ever, the relocation has to be funded from a reasonably beneficial disposal of the present market site. Fourthly, there is surely not a local authority anywhere, responsible to its ratepayers, who would not contemplate the beneficial use of its land assets. The proceeds to the Corporation will be applied to repay debt on its capital works as a local authority and to finance new capital works, all subject to whatever government controls are now or may be applicable to local government expenditure.
There are around 10 market tenancies at Spitalfields, these being warehouses and trader stands, and 139 tenancies in an office block nearby, known as the London Fruit Exchange. There are also 32 residential flats and car parks for 438 vehicles with lorry parks in addition. The whole site comprises about 11.5 acres and provides employment for around 1,000 persons, who work very unsocial hours at night and in the very early morning. Very few of the local, largely Bengali community, work at the market and if it were relocated and replaced by a development site, and thereafter by a substantial number of shops and offices, there would almost certainly be more employment opportunities for local people than exist now.
It is not part of the promoters' case for the Bill that Spitalfields Market has to move as a matter of urgent necessity. It is comparatively prosperous with hardly any trading vacancies, notwithstanding a general decline in the wholesale fruit and vegetable trade during the 1970s as a result of supermarkets simply by-passing wholesale traders.
The motivation to relocate Spitalfields Market arose from the market traders themselves and from the developers. The developers were no doubt motivated by profit, but there is nothing necessarily wrong or surprising in that. The market traders had many other motives. The market buildings are old (partly built at the end of the last century and partly in the 1920s), costly to maintain, and unsuitable for modern methods for the handling and storage of perishable goods. There is great congestion in the market and the surrounding streets, and given its location alongside the historic and business City and the increasing use of long and heavy vehicles for
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long-haul transport no realistic hope exists for improving traffic conditions. Street cleansing is costly and most unsatisfactory, as the market generates a great deal of refuse and there is considerable dumping of rubbish. Trading and rubbish dumping spill over into the highways, and it is far from certain whether, if much more time elapses, the market will escape attention from the local environmental health authorities, in which case the very issue which the corporation and the traders wish to avoid—closure—could arise. The traders want a market fit for the 21st century, not one which happens to work with difficulty from the 19th.
For the corporation, there has never been any question of seeking to close the market, highly profitable though that would be. Relocation meant dealing with developers who had a site which satisfied the traders, planning permission from the relevant local planning authority for a market to go on the site, and planning permission from Tower Hamlets Borough Council as regarding Spitalfields. The Bill is silent about planning permissions, and so it should be. There is no question whatever of overrriding planning or any other controls in the existing law. The potential relocation site at Temple Mills is around 37 acres in extent, and it is bounded on two sides by a railway line and the River Lea. There is no residential property particularly near to it. The main road alongside the Temple Mills site, Ruckholt Road, Leyton, is busy but very close to the site there is intended to be a link road for the M.11 extension, so that in future, communications to the market should be excellent. It is a key part of the promoters' case for the Bill that if the Temple Mills site is lost, alternative sites would be most difficult to find, and the opportunity to relocate could be lost indefinitely. The developers only might have some kind of consolation prize however by being able to redevelop their Temple Mills site for something more lucrative than a wholesale market.
It would not be my intention to expand at length on the redevelopment plans for Spitalfields, because all of them have gone through the normal planning processes with the London Borough of Tower Hamlets. Any changes to them, say, to provide more retail shopping and fewer offices—and that has been mooted and made known in another place—would likewise go through the planning process.
I would only make three points about the Spitalfields proposals. First, they do not represent some great and unique eastward movement of the business City. There are sites in the area as large or larger than that of the market planned for redevelopment; namely, the Bishopsgate goods yard and some sidings land, and a ten acre brewery site belonging to Grand Metropolitan PLC in Brick Lane, El, further east than Spitalfields. Secondly, land values in the area have reached a point where only substantial developments of a commercial nature are viable. Thirdly, there is a considerable package of what is known as "planning gain" in the Spitalfields proposals, which would be quite unattainable unless the site was developed as a whole by a substantial developer. Indeed, the corporation has undertaken not to enter into any fresh development agreement for the Spitalfields site pursuant to the move of the

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market under the Bill, unless a similar package of planning gain is provided, whatever the potential new scheme might provide—such as more retail shopping. I should have been very happy to tell your Lordships what the package of planning gain consists of; but I would hope that your Lordships might consider it inappropriate now. Suffice it to say that I am advised that the planning gain may well exceed £20 million in value, and it was all fully negotiated by Tower Hamlets Borough Council, and then increased at the behest of a committee in another place.
The petitioners against the Bill (to whom I should refer before concluding my remarks) fall into four categories: nine residents of the Temple Mills area in three identically-phrased petitions who claim, in effect, that their borough council ought not to have given planning permission for a market to be built at Temple Mills; a community group at Tower Hamlets called the Campaign to Save Spitalfields from the Developers, who claim in effect that their borough council ought not to have given permission for the redevelopment of Spitalfields Market site; Market Garages (Spitalfields) Limited who seek more compensation for its business (if it cannot be offered premises to relocate) than the committee in another place determined it might have; and a Mr. Alan Thomerson, who with a few other persons whom he names, criticises the designs of the market intended to be built at Temple Mills if the Bill is enacted. I submit that all these petitions, whatever their relevance to the terms of the Bill (and in some cases that relevance could be very doubtful indeed) can readily be considered by a Select Committee.
We have a Bill, supported by the traders at Spitalfields who have never given it less than 80 per cent. support out of the total membership of their association; and by all the relevant planning authorities; but opposed by a small minority of persons connected with the traders and by individuals and groups in the Spitalfields and Temple Mills areas who seem to disapprove of what their local councils have done. Behind the Bill there lies a perfectly proper development scheme for a run-down area, and the opportunity to ensure the future of an ancient market to serve the next century. Of course, the profit motive features within it, and I do not disguise that there are arrangements in place for the developers to make payments to the traders at Spitalfield and Stratford to deal with their relocation and cushion them from the undoubted business risks of moving. This is all perfectly proper and the kind of thing that a developer may expect to do for interests affected by his schemes. Even the small number of residential tenants at the Spitalfields site—and there are a few of them—have been considered because the scheme provides for their accommodation in what is known as the Horner Buildings to be leased back to the corporation, their present landlords.
I submit that if there are any points of validity in the objections that have been directed at the Bill, a Select Committee of this House will be fully capable of considering them, if the House is agreeable to the Bill proceeding. I beg to move.
Moved, that the Bill be now read a second time. —(Lord Renwick.)
7.50 p.m.
Lord Hacking: My Lords, as the noble Lord, Lord Renwick, has just told your Lordships, the traders of Spitalfields support this Bill. I have received representations from the traders of Spitalfields in the form of the Spitalfields Market Tenants' Association. It may assist your Lordships to know a little bit more about their views and the reasons why they wish to support the Bill in principle.
While I have no personal interest in this new market and no personal interest in the Spitalfields Market Tenants' Association, the association's members are clients of a partner of mine in my law firm. The Spitalfields Market Tenants' Association consists of 119 companies, partnerships and individuals who trade out of the Spitalfields Market in the City of London. They are not only market operators who move millions of tonnes of fruit and vegetables to various parts of the country during the year throughout the time the market is trading, but they also specialise in such commodities as herbs and in selling flowers and in catering supplies.
As the noble Lord, Lord Renwick, has told your Lordships, there are a number of problems with the present site of this market. As the noble Lord pointed out, it is not a self-contained market. That produces acute traffic congestion which is a problem not only for the locality, but also for the traders. Another major problem of this site for the traders is the lack of parking. There is a constant parking problem which is also shared by those who live in the area and by customers who come to the market. But, above all, the present market has outgrown its present site. The buildings are antiquated; there are inadequate loading facilities and it is simply unsuitable for modern trading.
It is with that background, upon the representations that have been made to me, that I am happy to tell your Lordships, as I have mentioned earlier, that this Bill is supported in principle by the traders in the market. Not only has this Bill the support of the traders of the market, but I am happy to record, if your Lordships do not hear it from the noble Lord, Lord McIntosh, that the Transport and General Workers' Union took an interest in this matter. Indeed, I believe the union petitioned against the Bill in another place. However, according to my information—the noble Lord, Lord McIntosh, will correct me if I am wrong—the TGWU withdrew its petition because it was satisfied that in the new market the employees—
Lord McIntosh of Haringey: My Lords, the Transport and General Workers' Union withdrew its opposition when it was offered £300,000.
Lord Hacking: My Lords, I am not sure where the noble Lord, Lord McIntosh, is leading us with that comment on the capitalist society, but clearly the union's primary obligations, unless the noble Lord, Lord McIntosh, should persuade us otherwise, concern its members and not building up the union funds by £300,000. Therefore, I shall continue to

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recount to your Lordships my understanding of why that big and powerful union withdrew its petition. I believe it was withdrawn simply because the union was satisfied that the new market presented congenial and modern premises for its employees.
I can probably best express the enthusiasm and interest of the market men about the new market, and the need to move, by quoting the words expressed by an East Ender who spoke strongly at one of the many meetings which have taken place concerning the proposals for the new market. I am afraid that I cannot get into the cockney accent. However, at this meeting, this man said that he wanted to speak on behalf of his business and his employees because:
"he meant to move from a Market designed for a horse and cart to a Market designed for the needs of the 21st Century".
Therefore, the users of the market look forward with enthusiasm to moving into the new Temple Mills site. That site has been described by the noble Lord, Lord Renwick. It is well located for transport and has 32 acres as opposed to the 11 acres of the present site. It will have modern buildings designed to take the market and make it operate efficiently. The site also carries excellent access to the M11 and the M25. If this is not a hackneyed phrase, it is all part of the development of the marketplace which will meet the challenges of the European Community in the 1990s and onwards.
Having given this support to the Bill, I should draw one matter of concern to the attention of your Lordships. I should be grateful if the noble Lord, Lord Renwick, to whom I have given notice of this concern, will assist the House when he comes to sum up. The concern arises from one of the major users of the market, that is the catering and hotel suppliers. They are responsible, according to the information before me, for as much as 50 to 60 per cent. of the overall market business. The curious thing is that they are not the vendors in the market; they are the purchasers. They are the purchasers on behalf of caterers and hotels. But so big are their purchasing needs, that they need a special space allocated to them in the market in order to collect their supplies and arrange for their distribution.
Their problem is that on the present design of the new market, there is insufficient ceiling space available. They want at least 20 clear feet in order to be able to operate efficiently. Only this afternoon I was told that the chief executive of the Spitalfields development group had given a verbal assurance that the necessary funding would be available. I believe the noble Lord, Lord Renwick, has already indicated that planning permission has already been granted in principle for the site. As I understand it, the redesigning of this part of the market in order to accommodate the needs of the catering and hotel suppliers should fall within the present planning permission. However, there is a problem with funding as considerable extra funding is required. I believe it is somewhere in the region of £600,000. An assurance was received that, provided the Corporation of the City of London could provide a matching funding, the necessary funding would be available. If that is so, the support I have tried to represent on behalf of the traders remains wholehearted and full.
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If accommodation cannot be made available for such a big section of the traders of the market—they represent, as I have already stated, 50 to 60 per cent. of the overall market business—there will obviously be difficulties, and obviously these traders will not be able to continue to give the full support to the Bill that they wish to give. However, I believe this can all be resolved even before the Bill is sent to the Select Committee, as I hope it will be, because it is of such concern to such an important sector of the market. For that reason and for that reason alone, I draw it to your Lordships' attention. I look forward to hearing what the noble Lord, Lord Renwick, has to say.
I hope I have explained the position of the market. The proposals of the Bill must be of enormous advantage to the market. The Bill must commend itself to your Lordships when the developers are saying solidly that the project has their support, in their commercial judgment of the value of the new site. The Bill must also commend itself to your Lordships when the Corporation of the City of London promotes the Bill, and when the people in the market, whose views I have tried to represent, also support it. I hope your Lordships will have no difficulty in giving this Bill a Second Reading for the reasons advanced by the noble Lord, Lord Renwick, and now advanced by myself from the position of the market traders.
7.59 p.m.
Lord Auckland: My Lords, the House will be obliged to my noble friend Lord Renwick for having given a very cogent and comprehensive presentation on the Second Reading of this important Bill. I do not intend at this fairly late hour and with very important business to follow to go into the details of the Bill. I take part in this Second Reading, first, because I am a former master of a livery company and, secondly, because I have spent all my working life within the City of London. Therefore I am naturally interested in any legislation which the City of London promotes.
Also, several years ago, when I participated more actively in the insurance industry than. I do now, I had the use of an office in Brushfield Street which is where most of the existing market operates. Even at 10.30 in the morning the amount of refuse which spilt over onto the highway was sufficiently dangerous, particularly in the winter, to cause appalling accidents. As my noble friend has pointed out, it is a public thoroughfare, Therefore it is very easy for somebody to slip on a piece of rotting vegetable or a wooden crate and injure himself. For that reason alone there is ample justification for the market to be moved.
Only last Friday I visited both the existing site and the proposed new site at Temple Mills. Your Lordships will recall that last Friday was a fine day and indeed a very warm day for this time of year. I observed the problems at the present site. First, a bonfire was burning which had been set alight by vagrants. Secondly, illegally parked cars made it difficult for the Tower Hamlets public health department to collect any refuse. I am informed that the police do as good a job as they can to clear such

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obstructions but there is, as your Lordships will appreciate, a real health hazard from rotting vegetables even if they are left for only a few hours, and that is particularly so in the summer.
It is also important to point out that if the market moves to the new site the present site will not fall into dereliction. It is intended that it should be used for a number of purposes, rather similar I believe to the Covent Garden site. Local residents and others will have a golden opportunity for a site for amusement and other facilities.
The proposed new site at Temple Mills is virgin land. There is no question of compulsory purchase being needed. As my noble friend has pointed out, the site is three times the size of the existing site. Access will be very much easier than at present. Any of your Lordships who are familiar with the area from Liverpool Street towards the East End of London will know the appalling obstruction which occurs at present because of market and other traffic.
Of course it can be argued that no site is ever perfect. My noble friend and the noble Lord, Lord Hacking, have mentioned objections. A Select Committee will take charge of that aspect. I should point out that in another place the Select Committee had 11 sittings, so the subject has already been comprehensively discussed.
There is a dire need, following the moves of Covent Garden and Billingsgate markets to new sites without any serious problems, for London's fruit and vegetable market to do likewise. We are now heading towards the 21st century; Spitalfields market has been in existence for 300 years and we must move with the times. My noble friend has already mentioned the position regarding the existing tenants. I talked to one or two of the stall-holders last Friday and there seemed to me to be a genuine desire for a move to take place. Therefore, with those few words, I hope that this Bill will receive a Second Reading.
8.5 p.m.
Lord Jay: My Lords, I want briefly to express the hope that the Select Committee which will no doubt examine this Bill will investigate very carefully whether it is in the best interests of those living in the Spitalfields area. There are many people in the area and some of those representing the area who have doubts on that score. It is true that there are many defects in the present market but I think that it has yet to be established, at least before the Select Committee, that there will not be a number of defects in the new market at Temple Mills in addition.
As I know very well, having for a good many years represented in another place a rather similar area, North Battersea, the prime needs of such an area are employment and low-cost housing to rent. I believe that approximately 1,000 people are employed in the present market at Spitalfields. The proposed development will generate a great deal of office employment but in that area there is already huge office employment to the west, in the City itself, and growing employment in Docklands further to the
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east. There are people who doubt whether that is the type of employment which is most needed in the area.
As to low-cost housing, which is clearly the greatest need in the area, there seems very little reason to believe that this proposal will give any assistance. Yet that is one of the worst housed areas and one of the areas most lacking suitable housing anywhere in London or indeed the country. Interestingly, I understand that this Government have withdrawn their proposal for a housing action trust—or HAT as they are now called—in the area on the grounds that it would not be possible to regenerate the existing blocks of flats because there is nowhere to which the tenants could be decanted while the regeneration was continuing. That is strong evidence from the Government themselves that the most acute need in the area is the provision of low-cost housing.
For those reasons, which are certainly felt in the area, I should like strongly to express the hope that the Select Committee will investigate very critically those issues arising from the Bill.
8.7 p.m.
Lord Elton: My Lords, I think that it is worth reminding your Lordships that we are not the planning authority in this matter. The Bill is called for because it takes an Act of Parliament to change an Act of Parliament and the market was established and regulated by successive Acts of Parliament. Those regulations would need to be transferred to a different area if the proposed change was to take place.
I have no personal interest beyond that generated by looking at the back of several million of those tonnes of fruit and vegetables that the noble Lord, Lord Hacking, mentioned and struggling through a good deal of wrappings thereof at eight o'clock on my way to meetings which I often have to attend at Bishopsgate.
It is clear that there is a prima facie case for the move because those conditions are entirely inappropriate to what we intend to continue to be the major financial centre of the world following 1992. Anyone who started now with a blank sheet of paper and an existing map of the City would not, if he were in his right mind, put the market where it now is, given that the function of the market is to make traders freely accessible to goods and goods freely accessible to the traders. At the moment we have a condition of slow traffic strangulation around Spitalfields Market. One reason why 80 per cent. or more of traders are in favour of the move is because they will go to an area where there will be free circulation of traffic, modern buildings and the proposed arrival of the M.11 extension.
I follow the noble Lord, Lord Jay, although he strayed into the area of planning and I believe that it would be improper for me to do so also. At present I work in Docklands. It is a matter of sorrow to me that, although there is enormous growth in employment in the area, little of that employment is taken up by residents. One should try to protect socially cohesive communities and one way of doing so is by making employment available to them. I

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believe that I am right in saying that part of the planning gain is intended to be directed towards trading. I hope very much that the Select Committee, in so far as it is proper for it to pursue that issue, will look to the deployment of that gain in the training of local people who are not largely employed in the market but who might well be given a welcome draft of employment in the development that replaces it.
I am grateful to my noble friend for bringing forward this Bill. I believe that the new facility will benefit the market and that the development will benefit the City. This is one of the rare pieces of legislation which, in the end, will benefit everyone concerned.
8.12 p.m.
Lord McIntosh of Haringey: My Lords, the House will be grateful to the noble Lord, Lord Renwick, for the lucid and candid way in which he introduced the Bill. I wish to start by saying that I agree entirely with what the noble Lord, Lord Elton, has just said; namely, that it is a proper Bill to come before noble Lords. It is a proper use of the private Bill procedure because the market was established by statute and can be changed only by statute. I also want to say at the outset that I recognise that, in promoting the Bill, the City Corporation has done so entirely properly in the sense that planning permission for the proposed developments has been sought and obtained both at Spitalfields itself and at Temple Mills. There is therefore no attempt here to bypass planning procedures.
I welcome what the noble Lord, Lord Renwick, said about the undoubted legal fact that any changes in the development brief would have to be subject to planning procedures. I also wish to express my thanks to the officers of the City Corporation for the full briefing that they gave me on the Bill. I was able to compare the views of the City Corporation and those of the secretary of the Market Tenants' Association with the views of the most important of the objectors who are campaigning to save Spitalfields from the developers.
I wish to refer briefly to Spitalfields, to markets, and also to two points of procedural and perhaps even constitutional importance. I know Spitalfields very well. I was vice-chairman of the Spitalfields project set up by the Great London Council, Tower Hamlets Borough Council and the Inner London Education Authority some years ago in an attempt to see what co-operation between different local authorities could do to solve the very pressing social and economic problems of a specific area of London. Substantial funds were made available by the GLC, ILEA and Tower Hamlets Borough Council to tackle what were seen to be severe problems in a way that would be acceptable to the local community. One of the principles of the Spitalfields project was that local people had the right to put forward projects to the local authorities and to be present at all the meetings of the project team. They intervened, sometimes forcefully, at meetings of the project team.
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We made a number of quite significant improvements in the conditions of the people of the area. I must however confirm what my noble friend Lord Jay said. Areas of this kind need above all decent housing at a price that the people there can afford and jobs of the sort they can do. I am grateful to the noble Lord, Lord Elton, for what he said about jobs for people in the community. That was certainly the case in Spitalfields. What became apparent was that one cannot tackle urban deprivation off the side of anyone's desk and in a small, restricted area. One requires much larger funds to make a deprived area like Spitalfields a place where people can work and live and have some self-respect and a decent life.
Spitalfields needs something very different from what is proposed in these developments. Reference has already been made to the Bishopsgate goods yard and the Truman's Brewery site in Brick Lane. That is the Grand Metropolitan site to which the noble Lord, Lord Renwick, referred. There are many other sites for which planning permission is being sought which would in themselves, even without the redevelopment of Spitalfields Market, result in a considerable change to the social character of the Spitalfields area.
One thing that must be said about Spitalfields is that, however deprived it may be and however bad the housing may be, it is a real community. It was the place where the Huguenots came to settle 300 years ago; it was the place where some of the first Jewish immigrants arrived in the 19th century; it is now the centre of the Bangladeshi community in Britain. Spitalfields is a live community. It is alive because it has resisted oppression and deprivation and because of the determination of the people in the area to look after themselves, to make the best of the physical conditions in which they live, and to find work and make that work prosperous.
I do not think that the noble Lord, Lord Renwick, did justice to the wide degree of support for the campaign to save Spitalfields from the developers. It is all set out in the petition. That shows how many people and groups are concerned. They fear that taking away the market will change the character of the Spitalfields area far more than any other individual change could affect it to the detriment of the community living around the market area.
I want to say something about the nature of the market and the arguments for the change. I am very dubious as to whether it is a good idea to move markets around. I am reminded that the City Corporation itself said as late as October 1987 that the Spitalfields Market was "relatively successful". That cannot be said about the new Covent Garden Market in Nine Elms. Many traders had a great deal of difficulty in surviving and adapting to the new conditions of a market that had moved out of Covent Garden. I do not say the same about Billingsgate. The problems in Billingsgate at its original location were so great that almost any .change would have been for the better, but the case certainly needs to be proved better than it has so far been proved that moving markets is a good thing when they are, as the City Corporation says, "relatively successful".

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The last general survey of market provision in Greater London was carried out by the Greater London Council as long ago as 1985. Surely there ought to be some more general view about the provision to be made for markets in our capital city before a decision of that kind is made. I am far from certain that the arguments put forward for the move, although beautifully produced in a glossy publication by the City Corporation, stand up to detailed examination.
I turn now to the traders' views. It is certainly true that 80 per cent. of the existing trading companies in Spitalfields Market are in favour of this development. However, the last general survey of the traders in Spitalfields carried out by the Greater London Council showed that at that time only 30 per cent. were in favour of removal. Why has there been a change? The answer is very simple. Just as the Transport and General Workers'Union—which, by the way, only has 160 members among the 1,000 people employed in and around Spitalfields Market—changed its mind because it was offered £300,000, so the Spitalfields Market traders changed their minds because they were offered a very large sum of money (I do not have the exact figure in front of me now) in order to change their minds and not object, as they were minded to object to the first proposals that were put forward. The same is true of the Temple Mills traders. The people in Temple Mills were given a very large sum of money to persuade them not to object to the proposals.
Lord Elton: My Lords, I rise only to say that the noble Lord makes it sound—I am sure unintentionally—a little like a bribe. It is quite normal in a business transaction to weigh up the costs, benefits and disbenefits and to seek for compensation. I think that is probably to what he is referring.
Lord McIntosh of Haringey: My Lords, the noble Lord has used the word "bribe", which I did not say. It is interesting to hear confirmed that there are substantial commercial risks involved which, in the noble Lord's view, justify that sort of payment. One is talking about millions of pounds and what may be hundreds of thousands of pounds for each individual trader. So there are such risks; and if at the moment the market is relatively successful and the local community wants it to remain there, then I shall need a lot of persuading that the payments are truly justified.
Lord Elton: My Lords, I was not referring to risks but to costs. There is a difference.
Lord McIntosh of Haringey: My Lords, the Select Committee will have the opportunity to look at the payments and at the elements of those payments which relate to actual costs and to risks and at that element which could only by residue be called bribes. I think that it may well be found that there are some elements of all three.
The arguments which have been used about the specific conditions in Spitalfields have principally been about, first, traffic congestion; and, secondly,
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rubbish. The City Corporation has been most helpful in this matter. In October 1987 it stated that much could be done to alleviate the problems. I shall not repeat them; but they include traffic congestion, which could be alleviated with the co-operation of the Metropolitan Police, and problems of rubbish dumping, which requires the co-operation of the Tower Hamlets Borough Council. What attempt has been made to alleviate those problems without removal? The Select Committee will have to be convinced that everything possible has been done to secure the best environmental conditions for the market in its present location without disturbing the local community and without offering these risks for the local traders.
Let us be quite clear. The Select Committee will have to be convinced of the overwhelming strength of the case for the Bill before it gives a clear run to it and sends it back to your Lordships' House for further consideration. The onus must be on the promoters of the Bill to convince your Lordships in your Select Committee that this Bill, to which there has been such wide objection and which will have so dramatic an effect on the community in which the market is at present situated, is on balance justified. The objections which have been made to the Bill are serious objections which deserve to be treated seriously.
There are two procedural matters to which I want to refer before concluding my remarks. I address the first of them to the noble Lord, Lord Hacking. I am not familiar with the way in which solicitors' practices distribute their surpluses; but I understand that the proceeds from all partners are put together and that one partner does not take the proceeds from his own clients alone. I draw the noble Lord's attention to item (xiv) of the rules of debate on page 41 of the Companion which states that:
"It follows from this that if a Lord decides that it is proper for him to take part in a debate on a subject in which he has a direct pecuniary interest, he should declare it".
The noble Lord, Lord Hacking, indeed did so impeccably. The passage goes on to state:
"It is however considered undesirable for a Lord to advocate, promote or oppose in the House any Bill or subordinate legislation, in or for which he is or has been acting or concerned for any pecuniary fee or reward".
The noble Lord is not acting on behalf of the Spitalfields Market Tenants' Association, but one of his partners with whom he is associated in business is doing so. I ask him to consider the implications of that in the light of the Standing Orders.
My second point also refers to the Spitalfields Market Tenants' Association. I have seen a letter, and I propose to send a copy of it to the Clerk of the Parliaments and the Chairman of Committees, from the Spitalfields Market Tenants' Association to all its members. It reminds the members of the very substantial sum of money which has been made available to the tenants of Spitalfields Market in return for their support for this legislation. It states that if any member of this Spitalfields Market Tenants' Association opposes the Bill or petitions your Lordships' House against the Bill, then the association will take action in accordance with its

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Articles of Association to secure the expulsion of that firm from the Spitalfields Market Tenants' Association.
I simply ask the question: is that pressure on potential petitioners to your Lordships' House in accordance with either the rules of this House or indeed with parliamentary privilege?
Lord Harris of Greenwich: My Lords, while I express no view on the merits of this Bill, I am bound to say that it is an extremely serious matter to which the noble Lord, Lord McIntosh of Haringey, has referred. It seems to me that an attempt is being made to put pressure on witnesses before a committee of this House—witnesses who in fact would be invited to give evidence on oath. I very much hope that this matter will be looked at by the Leader of the House and the Lord Chairman of Committees. I have not heard such an allegation made in the 15 years that I have been a Member of this House, and I think that this should be looked into as a matter of urgency.
Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord, Lord Harris, for his intervention. I shall ensure that he has a copy of the letter to which I referred. I propose to send a copy to the Lord Chairman of Committees and to the Clerk of the Parliaments.
Lord Elton: My Lords, would the noble Lord be kind enough to place a copy in the Library so that other noble Lords may see it as well?
Lord McIntosh of Haringey: My Lords, I shall be delighted to do so. In accordance with the conventions of this House, it will be accepted that I have no intention of dividing the House against a Second Reading of a private Bill. However, I do feel that there has been sufficient concern expressed about the Bill, about the effect on the community from which the market comes and indeed about the effect on the viability of the market, to ensure that the Select Committee of your Lordships' House must consider it to be a matter of very grave concern and take very serious account of the arguments both for and against the Bill.
The arguments for the Bill have been put most fairly by the noble Lord, Lord Renwick, and other noble Lords. I hope that the Select Committee which is appointed to deal with this Bill will not feel that this is a matter of purely local or trivial interest. I believe that there are issues involved in this legislation which, although they are entirely properly raised before this House, deserve perhaps even more than the consideration which its Select Committees usually give.
Lord Hacking: My Lords, will the noble Lord allow me to intervene? I have been in this House for a number of years. I think it is in the region of 18 years. I have always tried impeccably to serve this House with total propriety. Wherever there is an interest to be disclosed, I have always tried impeccably to follow the rules. I did not know that the noble Lord, Lord McIntosh, was going to make
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that point. If my recollection is right the matter was last considered by the House on a matter concerning Lord Brentford. I do not refer to the present Viscount, Lord Brentford, but to one of his predecessors. If I have transgressed the rules of this House in any way, I should like to consider in detail and with care the point made by the noble Lord, Lord McIntosh. I hope that noble Lords will forgive me for not doing so on the spot. It is simply because I have not had time to consider it. As I state, I have always tried impeccably to serve the proprieties of this House ever since I have been a Member, and I intend to continue to do so.
Lord McIntosh of Haringey: My Lords, I am sure that that is right and proper. In making my remarks, I said that the noble Lord had been impeccable in declaring his interest. I apologise to him for not being able to give him advance notice of what I was going to say, but I did not have advance notice myself because I did not know that he was going to speak for the Spitalfields Market Tenants' Association. If I had known in advance, I should certainly have given him an indication of my concerns.
Lord Hacking: My Lords, I am sorry to detain noble Lords again. All I did in your Lordships' House was to represent the views of that association because I thought it was helpful for noble Lords to hear them. I was not promoting this Bill. I was doing no more than representing the views of persons directly affected by the proposals contained in this Bill.
Lord McIntosh of Haringey: My Lords, I accept that entirely.
8.32 p.m.
The Earl of Arran: My Lords, I hope at this point that the Government may be allowed to intervene, albeit briefly, to give an indication of their view on this Bill.
The Government have considered the content of this private Bill and have no objection in principle to the proposals in it. Neither the Ministry of Agriculture, Fisheries and Food, which. has general responsibility for wholesale markets, nor the Department of the Environment, have any outstanding points on it. In the usual conventional way the Government have taken a neutral stance in the Bill.
However, it may be helpful to your Lordships' House if I say a few words about the planning issues relating to development of the existing Spitalfields site which have been raised by a number of noble Lords this evening. The planning application submitted by the Spitalfields development group to redevelop the site of the existing market was approved by a policy of the sub-committee of Tower Hamlets Council on 7th September 1987 subject to the completion of a legally binding agreement between the Corporation of the City of London, the council and the developers. The application was not referred to my right honourable friend the Secretary of State for the Environment because the council did not consider that it constituted a departure

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from the development plan. The Department of the Environment did not receive any representations prior to the granting of planning permission that the application be called in for public inquiry. If the developer were to submit a new or revised application to the council and representations were made to the Secretary of State that it be called in, we would of course consider carefully those representations.
I understand that local people will derive some £20 million worth of benefits from an agreement that was reached between the developer, the City of London Corporation and Tower Hamlets Council. This is in part due to the committee's consideration of the Bill in another place.
I note that there are six petitions against the Bill in your Lordships' House. They will have the opportunity to present their objections to the Select Committee. The committee will be in a very much better position than we are tonight to examine in detail the issues involved. They will have the added advantage of hearing expert advice. I hope therefore that your Lordships' House will give the Bill a Second Reading so that it can be allowed to proceed in the usual way to Committee for this detailed consideration.
Lord Renwick: My Lords, I am grateful to the Minister for his words—which were not exactly of support but they at least raised no objection—and for considering the planning issues, which I do not believe are part of the corporation's promotion of this Bill. However, I am grateful to him for his words.
I am also grateful for the support that I have received from my noble friends, and from the noble Lord, Lord Hacking. I believe that between them noble Lords have mentioned the traffic congestion and the appalling mess that the current market is generating. I have seen it. I believe that in the 1990s the need will be brought upon us to look for a far more hygienic method of handling edible foods than would be possible under the circumstances at the present market.
The noble Lord, Lord McIntosh, mentioned many other points. I should like to consider one or two of them. One point was that the corporation had said that there was much that could be done to alleviate the problem. There is much that can be done; and there is a lot that is being done to alleviate the traffic congestion and the problem of rubbish. However, I believe that anyone who has visited the site would realise moving the market to a purpose-built market place ready for the 21st century is the best solution.
The noble Lord, Lord McIntosh, mentioned that I did not go into the history of the area. This is part of the planning permission that Tower Hamlets has given about the future use of the site at Spitalfields. I have sympathy with the need. The noble Lord, Lord Jay, made reference to low cost housing. But I believe that land prices and property prices in the area around the Spitalfields market site have already risen so much that although low cost housing to rent would be required, it would be difficult to find.
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I have received a special plea from the noble Lord, Lord Hacking, on the concern of the catering and wholesale suppliers, and the need for some more work to be agreed in the design of the new market. On behalf of the Corporation of London I can do no more than to note that a verbal assurance has been received from the developers and I am sure that the corporation would wish the new market to be so constructed that it gives one of its major traders the necessary area in which to carry out its business. If it is between 50 per cent. and 60 per cent. of the business trade, there they obviously have a big pull. I have no doubt that that would be in the interests of everybody.
I do not wish to spend too much longer in replying because I believe that we have important business to follow. I respect the noble Lord, Lord McIntosh, who said that he is not intending to oppose the Bill's Second Reading. I support him when he says that the Select Committee has a serious task to perform. On the two procedural matters, I believe that the first is no concern of mine and will be dealt with. On the second, I am instructed that the corporation was not party to any letter sent to the members by the Spitalfields Market Tenants' Association.
Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord. I did not suggest that the corporation was in any way party to such a letter.
Lord Renwick: My Lords, I accept that. Therefore in representing them in moving the Second Reading, that is also a matter that should not be further discussed by me.
Before I ask your Lordships to approve the Second Reading, I should like to add my thanks to those of the noble Lord, Lord McIntosh, to the officers of the corporation for the presentation that they have made. I ask the House to support the Second Reading.
On Question, Bill read a second time, and committed to a Select Committee.

Official Secrets Bill
8.40 p.m.
House again in Committee on Clause 1.
[Amendment No. 7 not moved.]
Lord Bonham-Carter Lord Bonham-Carter moved Amendment No. 8:
Page 2, line 5, at end insert—
("(5) It is a defence for a person charged with an offence under this section to prove that—

(a) before the time of the alleged offence the information in question had become available to the public, whether in the United Kingdom or elsewhere; and

(b) there was no reasonable likelihood that its further disclosure would damage the work of, or of any part of, the security and intelligence services.")

The noble Lord said: I believe that it will be convenient for the Committee if we consider Amendment No. 23 with Amendment No. 8. I hope that members of the Government will regard this as a friendly amendment. It is designed to make their

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lives easier, to stop them making fools of themselves all over the world by repeating what is known as the Spycatcher syndrome. On this occasion I expect to have a more responsive answer from the Government Front Bench—from the noble Earl, Lord Ferrers—than we have had hitherto this evening.
The amendment is simple and seeks to provide a limited prior publication defence for offences in Clause 1. It recognises, as I hope the noble Earl will accept, that prior publication is not necessarily and in all circumstances a defence. There can be circumstances in which proper publication makes not the slightest difference to the damage done. For example, information published in an obscure learned journal which may be available to the KGB in Moscow may not be readily available to the IRA on the backstreets of Belfast. But on the other hand, if that information were published in a popular paper, it might be available to the IRA and thereby it might be damaging. That is something that the proposers of the amendment wholly support and accept. Nonetheless, where there is a harm test, prior publication is relevant and is recognised by the Government to be relevant in a manner which they accept.
Where there has been prior publication subsequent publication is an offence only where that publication caused harm over and above that caused by the original publication. The Home Secretary accepted that in another place when he said:
"Under our proposals, prior publication can be relevant to a prosecution and, for the first time ever"—
those words we have become familiar with—
"that fact is recognised by the Bill … The defence will successfully argue that prior publication means that the disclosure …has done no further harm".—[Official Report, Commons, 21/12/1988; col. 464.]
The amendment applies to the absolute defences in Clause I where at present every repetition of published information is a new offence. It is this ridiculous situation which we want to rectify. Let me give the Committee an example. On day one a newspaper reveals, let us say, that the First Secretary at the Soviet Embassy is a British agent. On day two, the First Secretary of the Soviet Embassy is sent back to Russia and consigned to Lubyanka. On day three another British newspaper reports that the First Secretary of the Soviet Embassy has been sent home, is a British agent and has been consigned to Lubyanka. The amendment would not prevent the first disclosure from being liable under the Bill. But no further damage has been committed on day three when the newspaper announced that the First Secretary, whom everyone now knows is a British agent and is now in prison in Lubyanka, has gone to Lubyanka. Therefore it is ridiculous that on day three the newspaper which repeats the information available everywhere should be guilty of an offence, as it is under the Bill, unless it is amended in the manner I am proposing.
This ludicrous situation is what has become known as the Spycatcher syndrome, about which the Law Lords said that it is nonsensical to attempt to suppress information which was available worldwide. We are asking the Government on this occasion to accept the Law Lords' advice. That is what I am hoping they will do. I should like to add
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that the language we have used very carefully in the amendment in order to endear ourselves still more to the Government, derives in part from language used by the Government in the 1979 Bill to reform Section 2. I beg to move.
Lord Campbell of Croy: I should like to comment briefly on this proposed amendment which deals with prior publication—something with which we have all been familiar when dealing with this subject. I note that the proposers of the amendment have put down a similar amendment with naturally adapted wording—Amendment No. 23 to Clause 4. But they are not proposing similar amendments to those parts which deal with defence and crime and special investigation powers respectively. I presume that they have decided it is not appropriate in those cases.
I do not support the amendment because there are two situations that I foresee. The first is that unscrupulous people may be tempted to arrange for the publication of certain information which they want to make into a story in a journal abroad. It may be some obscure foreign newspaper but once it has been published the information can be produced in court with a date and presumably that could be used as a defence. Unscrupulous people will go to great lengths to sell a story which they know will reach the headlines.
My second example concerns a minor report, perhaps of only two or three lines, which may appear in this country in a small weekly newspaper. I know of examples in my own home area in Scotland, such as the Strathspey and Badenoch Herald or the Forres Gazette, not widely read either in this country or abroad. A minor report, containing some delicate information, even though the reporter was not aware of that at the time, would probably not be noticed and may not even be recognised as being on a sensitive security matter unless someone stumbles upon it and blows it up into a national newspaper story. It may be said that that is unlikely, but I contend that I have known incidents of this kind in the past.
It may be said that the kind of newspapers I have described would not carry such information. They may not carry it intentionally, but some of the rural and more remote parts of our country have significance in defence matters. It is possible for some characteristic of an apparently innocent installation to be noticed and reported upon, unintentionally disclosing a matter which is not intended to be made public. With good luck that may not be noticed in a small local newspaper. It may be tucked away somewhere. However, if it could be used as a defence for someone making a major story and turning it into a headline in the national press, great damage could be done. The Strathspey Herald report which I have suggested may occur would not be noticed by most hostile powers, Colonel Gaddafi or the IRA.
It may be said that it does not matter if, by chance, such a report appears in a small obscure newspaper. The question is: where should the line be drawn? In my view, it is not feasible to draw a line and say that a major provincial newspaper matters but a small weekly newspaper covering one county does not.

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Therefore, prior publication should not be a defence, as proposed by the amendment.
The second paragraph of the amendment attempts to mitigate the situation by indicating that it is not only prior publication but also the possibility of damage being done. It is too late by the time it has become a national newspaper story, unless an unscrupulous person is simply trying to make money or obtain notoriety from something which he knows to be a secret. However, if it is a question of an issue being blown up into a story by a person who is not doing that, he is most unlikely to know of the sensitivity of a subject, particularly in relation to Clause 1 dealing with the security and intelligence services. A matter which may appear to be straightforward may be delicate and, when pieced together with other information, could give away a secret.
I do not commend the amendment and I hope that Members of the Committee will reject it.
Lord Ardwick: This is a further example of "Reds under the flat bed", if that is still the kind of machine which is operated in Strathspey. What the noble Lord has described is not the way in which newspapers behave; even today and even at their worst.
The Government have put forward some peculiar thoughts about the matter and I have been rather disappointed. I never had much hope of immediate progress on the previous subject of a public interest defence but I hoped, and still hope, that we should be able to make a little progress on this issue.
One will see in the White Paper the kind of issue which was in the mind of the Government. Under the heading "A Defence of Prior Publication", the Government recall that under their 1979 Bill it would not have been an offence to disclose without authority information in certain categories if the defendant could show that the information had been published before his disclosure. In those days the Government argued that a second disclosure could not be harmful in such circumstances. However, their successor, the present Government, say that that rationale is flawed. They then go hunting for an example and come up with an idea—not the same idea as that of the noble Lord—that a newspaper story may carry little weight without firm evidence of its validity. However, the danger would arise if confirmation of the facts of the disclosure was made by a senior official of the relevant government department. That would be much more damaging if ever it occurred. Therefore, the senior official would have no defence and would be subject to criminal sanctions.
That strikes one as being a most far-fetched and unlikely hypothesis. It is a government clutching at a straw as they suffer from post-Spycatcher neurosis which has left them with an irrational fear of drowning. Of course theoretical damage is always possible as a result of the publication of anything at all, as those concerned with defence know only too well. However, the Government accept that where a harm test is to apply to a defence, someone who republishes information would commit an offence only if additional harm is caused.
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It is on that point which the noble Lord, Lord Bonham-Carter, and I are happy to come beneficently to the help of the Government. But no test of harm applies to the absolute offences in Clause 1. Give the information again and you create a new offence, even though it is obvious that no further harm can be done. It is such an offence which a journalist may easily commit simply because he discloses information of a class or description likely to be harmful.
In their more liberal moods the Government now accept the idea of a prior publication defence but wish to exclude an absolute defence. So now we are trying to carry out the Government's beneficent intentions with an amendment providing a defence of prior publication where there is no further likelihood of harm from the repetition of information which has previously been published.
Many years ago I sat on the D-Notice Committee under the genial and liberal Admiral Thomson. The principle was that a D-Notice would give you warning that to publish certain information may get you into trouble under the Official Secrets Act. Frankly, the expert journalists from the technical defence publications, especially those dealing with aviation, often revealed that what the defence people wanted to warn us against publishing had already appeared in some journal, usually American. By the time the item had reached the D-Notice Committee it had been neatly filed in one of Molotov's famous filing cabinets in the Kremlin. Therefore the particular D-Notice was never published and somehow the nation survived.
Now another generation of expert journalists 30 years later fear that this Bill could make the system unworkable simply because it strengthens the powers of government officials to censor and further restrict the flow of information. That is an issue which I believe the Government should seriously consider.
Lord Monson: I hope that the Government will look favourably upon the amendment because it is clear that national security is protected by the belt and braces of paragraphs (a) and (b) respectively. In order for someone to defend himself effectively not only must he be able to prove that at the time of the alleged offence the information in question had become available to the public but, in addition, there must be no reasonable likelihood that further disclosures will damage the work of the security and intelligence services. In other words, both tests must be fulfilled before the man who spills the beans can effectively defend himself.
I should prefer the word "widely" to be inserted before the word "available". What is meant by the phrase "available to the public"? Does it mean 10, 100 or 500 people? I believe that if the word "widely" had been inserted the amendment would be easier to defend. Alternatively, the phrase "available to a substantial section of the public" might be better.
Nonetheless, if the amendment as it stands is not totally acceptable, I hope that the Government will accept its principle and we can return at a later stage with an amendment acceptable to them.
9 p.m.
Lord Belstead: I hope I can persuade Members of the Committee that this amendment is unnecessary inasmuch as it would apply to disclosures by Crown servants and government contractors who are not members of the security and intelligence services whose disclosures are therefore already covered by a harm test. More importantly, I hope I can persuade the Committee also that it would not be consistent with the introduction of the offence in Clause 1(1), nor would it be right to introduce a defence that a disclosure by a member of the services was of information that had already been made public in some form, but that is ground we have already covered.
Let me deal first with the offence in Clause 1(3) which applies to Crown servants or government contractors who are not members of the services or notified people. That offence is subject to a test of harm. It is in Clause 1(4). The test is that the disclosure damaged or was likely to damage the work of, or any part of, the security and intelligence services, or is of a class or description likely to do so. If the prosecution cannot satisfy a jury on that point beyond reasonable doubt, its case falls.
In respect of this offence, where a harm test applies, this amendment simply requires the defendant to prove something which under the Bill as it stands the prosecution has to prove; namely, that the further disclosure was harmful. That makes the defendant's position worse not better. Where there is a test of harm, evidence of previous publication is not excluded from consideration. On the contrary, it is highly relevant but it cannot be conclusive. Members of the Committee moving this amendment appear to agree with that point of view. So there seems to be nothing between the noble Lord, Lord Bonham-Carter, and the Government on this. The amendment is not therefore necessary in respect of the offence in Clause 1(3) of the Bill and rather than the noble Lord making life easier for anyone, I believe that in this respect the amendment makes life worse for the defendant.
Perhaps I may turn to say something about members of the intelligence and security services and notified people. In that respect I take a harder view on behalf of the Government by saying that I do not believe that this defence is either desirable or safe in respect of the offence in Clause 1(1) of the Bill relating to members of the security and intelligence services and notified people. I know that I have been over this ground before and on Amendment No. 2 we have decided that any unauthorised disclosure by a member of the security and intelligence services is harmful. Because it breaches the special trust placed upon him, it must undermine confidence in and within the services and thereby must damage their work.
I feel in this connection that this amendment sends the wrong signal. It says that there are circumstances in which you can breach the trust placed in you without causing harm. We do not believe that that is so. The fact that the information may have been publicly available in some form somewhere in the
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world does not affect that position; particularly so, in the example given by my noble friend Lord Campbell of Croy where the publication was in a small and obscure newspaper.
Indeed, I go further because what I have just said is familiar and I have said it before. The amendment would create an obvious and damaging loophole. The Bill says, and the Committee has agreed after debate, that any unauthorised disclosure by a member of the services or a notified person must be damaging. But if such a person can find some public reference to the information anywhere in the world, then it appears from the amendment that it may be all right to breach that trust. The amendment suggests that it is certainly all right to treat him or her in the same way as if he were not a member of the services at all, since exactly the same test must be proved for a member of the public (under the offence in Clause 5(2)). That is not right.
As my noble friend Lord Campbell quite rightly pointed out, this amendment makes it possible for a member of the services—and of course I trust that none would ever be tempted to do so—to make an unauthorised disclosure and then to argue that no harm is likely to arise since there had been publication of it elsewhere. In order to rebut such an argument, the prosecution would have to adduce evidence of harm arising from the disclosure. In order to do that, the prosecution would often have to reveal details of the operations of the services. The disclosures it would be obliged to make could be as harmful as the original disclosure. In practice, in many cases no prosecution could be brought. The more damaging the disclosure, the less likely it would be that it would be possible to bring charges.
The result would be that once any unauthorised disclosure of information relating to security or intelligence was made anywhere in the world it would in practice be impossible to prevent the information gaining stature and authenticity if any member of the services decided to repeat the disclosure. His or her trust could be broken at will.
Perhaps at this point I may say that it seems that some of what the noble Lords, Lord Bonham-Carter and Lord Ardwick, said may be something of a misinterpretation of the effect of Clauses 1 and 5. I am advised that if a publisher repeats a story in another publication, he only commits an offence under Clause 5 in relation to disclosure of information relating to security or intelligence if the harm test for security or intelligence matters is met. The test in Clause 5(3) is the same as the test in Clause 1(4). Under the Bill that is for the prosecution to prove. It is not a defence as proposed in the amendment.
Perhaps I may finally try to answer the case as regards Amendment No. 23. Here the situation is different. The effect of Amendment No. 23 is to introduce a harm test for the subsequent disclosure of information following a disclosure in the category of information gathered under statutory warrants. What is different here, as will be seen from reading the amendment, is that it does not actually provide for a defence at all. The effect of Amendment No.

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23 is that the prosecution would have to prove additional matters to the satisfaction of the jury, and thus, if the information is previously made public in some form anywhere in the world or—and I stress the point—If the prosecution cannot satisfy the jury beyond reasonable doubt that the information has not been published before in some part of the world, the prosecution will have to satisfy the harm test. Therefore, even if the information has not been published before but the prosecution is unable to prove that negative, an unauthorised disclosure about these essential powers is possible.
It is hard indeed to prove a negative. I venture to suggest that it will be almost always impossible to prove this particular negative. It is harder still, in the interests of the nation, if some indiscretion somewhere in the world, out of reach of this Bill and our courts, left the way open to appear to encourage disclosures of this sort of information. We are dealing here with information concerning statutory warrants. It is a serious risk which I am sure the Committee will not wish to take.
In coming to Amendment No. 23 which deals with statutory warrants I have to say that we reach the one area of the Bill where, for very good reasons, we propose no harm test. The reasons are sound. It is an area which is extremely narrow and safeguards which have been put into law by the 1985 Act and the Security Service Bill now going through Parliament are considerable. We propose in this narrow area no extension of the present law but we feel that we cannot possibly agree to a diminution. Any disclosures of this sort of information are absolutely bound to be harmful and they are not made less harmful by repetition,. It is not reasonable to expect the prosecution to prove the absence of a previous publication in this most sensitive area. It would be extremely damaging and objectionable in principle to require the prosecution to prove the damage caused.
I am sorry if I sound a little heated on Amendment No. 23 but it really is absolutely fundamental. Although I have to resist both amendments, Amendment No. 23 would do the greatest damage.
Lord Bonham-Carter: We have tried on earlier amendments to persuade the Government to improve the Bill and in this amendment we have endeavoured to prevent the Government from becoming a laughing stock. All we seek to do with this amendment is to apply the arguments which are accepted by the Government where there is a harm test to those offences which are absolute. The Home Secretary accepts the arguments as being legitimate where there is a harm test—that is, repetition is only dangerous where it brings information to people who have not previously seen it. He accepts that repetition which takes place under certain circumstances and brings information to people who previously did not have it falls within the Bill. He also accepts that where information is widely available repetition cannot possibly be damaging.
As I understand the Leader of the House, he is saying that there are circumstances in which the
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same information which is universally available just by being repeated is damaging. If that is what he is saying I simply do not follow it. That seems to me what the Spycatcher syndrome is about. That is what the Law Lords said was ludicrous. That is what we are saying is ludicrous. By simply saying that certain information that is universally available is damaging by being repeated is to state a proposition which I find absolutely impossible to accept.
Lord Belstead: Perhaps the noble Lord will allow me to intervene. I may have been guilty of not getting across the point. On the first amendment the Government are saying that, where there is a test of harm, evidence of previous publication is certainly not excluded from consideration. On the contrary, I said that it might be highly relevant. However, it cannot be conclusive. It is because Amendment No. 8 is seeking to make it conclusive that the Government do not like that amendment.
Lord Bonham-Carter: I am grateful for that explanation. We are not saying that it is conclusive but that it is a defence. Of course, previous publication is relevant but not conclusive. I cannot see the arguments which make it relevant but not conclusive, whereas the harm test ceased to make it relevant but not conclusive where it is an absolute offence. This is the centre of the argument which I am offering.
However, we have clearly failed to persuade the Government. I am disappointed because I felt that the amendment was reasonable and helpful. Sadly, therefore, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.15 p.m.
Lord Bonham-Carter Lord Bonham-Carter moved Amendment No. 9:
Page 2, line 12, after ("above") insert ("may only be served on a person who is a Crown servant (including a person to whom the provisions of sections 12(1)(f) or (g) below apply) or a government contractor and").
The noble Lord said: I move this amendment in the absence of the noble Lord, Lord Mishcon, who cannot be here for reasons which I know he cannot avoid.
A weakness of the Official Secrets Act 1911, and particularly of Section 2, was its catch-all quality. It is that aspect which, as I understand it, this Bill sets out to avoid. However, it would appear that Clause 1(6) runs into the danger of repeating that error. Without this amendment there is simply no limit to the category of people whom the Minister can notify and who would then be under an absolute ban on disclosures about security and intelligence, even if those disclosures were totally harmless. The only test that the person's work was connected with security or intelligence is the Minister's opinion. It is his say-so alone which counts.
I should like noble Lords to consider a hypothetical situation in which, let us say, a Minister had lunch with six journalists at his club for a briefing about this Bill. This Bill is unquestionably connected with security and intelligence. Let us suppose that in the course of that lunch the Minister went rather

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too far in his disclosures. I am not saying that it is likely that the present Minister would do so, but might he not, according to the letter of this Bill, notify those journalists and might they not therefore be prevented from using the information which he gave them? That is one point which I think has to be taken on board.
Secondly, let us suppose that someone thinks that he has been wrongly notified. What does he do? To whom does he appeal? The answers given in another place to this question were nothing if not confused. The Minister of State, Mr. Patten, said in connection with this matter:
"The matter is not open to judicial review".—[Official Report, Commons 25/1/89; cols. 1127-8 and 1138.]
One column later he said:
"The power of notification is without judicial review. I have already said that twice to the Committee".
On the same day he said:
"Ministerial decisions would be judicially reviewable. The normal principles of judicial review would apply".
Therefore, it is not unreasonable for us to ask for clarification in this matter. The term "any person" who can be notified by the Minister because he has come to an opinion is much too vague and seems to me to be dangerously vague. It could include, for example, the paper-seller outside a building in Curzon Street who happened to recognise Alec Guinness as he went in and out in "The Spy who Came in from the Cold". I suggest that clarification is required. I hope that the noble Lord on the Government Front Bench will see that this amendment provides some measure of clarification and, if it does not, that he will provide some measure of clarification himself. I beg to move.
Lord Renton: I am sure that this is not intended to be a wrecking amendment. Indeed the noble Lord has given his sincere reasons for moving it. However, it seems to me that this amendment overlooks the fact that the whole purpose of notification is to bring within the scope of subsection (1) those people who are not members of the intelligence and security services but whom may have helped those services in obtaining valuable information or who may quite by chance have been instrumental in providing it. To say that it therefore shall not apply to such people defeats the purpose of the notification procedure. I should have thought that this amendment, harmless though it would seem to be, is something that we should not accept.
Earl Ferrers: It may be helpful to the Committee if I set out briefly how Clause 1(6) works. A Minister may only notify a person that he is subject to the same offence in Clause 1(1) as a member of the security and intelligence services if he is satisfied that two particulars are fulfilled.
The first is that the work undertaken by the person is or includes work connected with the security and intelligence services. The person must therefore have some official standing in relation to the services. Without that his work cannot properly be held to be connected to the services. If the Minister is satisfied that the person's work is indeed connected with the security and intelligence services, he must then
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address a second criterion. He must satisfy himself that the nature of the work undertaken by the person is of such a kind that the interests of national security require that he should be subject to the offence in subsection (1) of this clause. I emphasise that the Minister has to be satisfied that the interests of national security require notification. It is not enough that he believes it to be desirable or convenient in the interests of national security. The interests of national security must require that that is so. Nor is it enough that the connection may put someone in the way of information from the security services if the work is not such as to require notification in the interests of national security. The second criterion disposes of many of the other more extravagant examples.
I emphasise that both the criteria in Clause 1(6) must be satisfied before someone is notified. The noble Lord, Lord Bonham-Carter, asked what will happen if a person is wrongly notified. I can confirm that the Minister's decision would be open to judicial review. I should like to assure the Committee that there is no power to notify anyone retrospectively. The liability cannot arise until the notice of notification has been served by the Minister in writing on the person who is to be notified. Once notification is revoked—under Clause 1(7), which we shall discuss shortly—liability continues for the information relating to security or intelligence which was in a person's possession during the period of notification but not for any information which he may subsequently obtain. If he makes any unauthorised disclosure of that subsequent information, he is subject to the damage test in Clause 1(3).
The effect of notification is to put a person in the same position as a member of the security and intelligence services, and that is its objective. The question on which the amendment focuses is to whom the power can apply. That is a question effectively of who stands in an official relationship to the services, who has a comparable position of trust and who ought therefore to share the same liability. My honourable friend the Minister of State gave the Committee on the Bill in another place an indication of the types of people whom it is intended to notify. I think the Committee would find it helpful if I were to explain who those were, although the Committee will understand that I cannot reveal operational information.
We propose to notify some carefully selected and mainly senior officials and members of the armed forces working in a few government departments because they are involved in assessing and deploying intelligence information of the greatest sensitivity and in assisting Ministers in the exercise of their responsibilities for the security and intelligence services. We propose also to notify some, mainly Crown servants, who work on providing the services with regular professional support for their operations and activities. We shall also notify those members of the armed forces who are undertaking technical communications work alongside the services in various parts of the world.
We also propose to notify those with particular responsibilities or public duties in respect of the services, including Ministers. This includes a small

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number of people who hold public office which involves a detailed knowledge of the services. Such people have a close knowledge of the work of the services and they stand in an eminent position of trust. It is right therefore that as a matter of consistency they should share the liability of the services. They are neither Crown servants nor government contractors. They include, for instance, the chairman and members of the Security Commission.
It will be clear, I hope, from what I have said that notification will not apply to the vast majority of people who may from time to time be provided with information by the security and intelligence services, or who may be aware of particular aspects of the work of the services, or who from time to time give support and assistance to them. Any unauthorised disclosure by such people will for the first time be subject to a test of harm.
I hope that this explanation gives the clearest possible exposition of the way in which the power will be used without revealing operational secrets by identifying the particular posts or the particular individuals who would be involved. I also hope that Members of the Committee will find it reassuring and will see that, taken together with the statutory restrictions which I described, the provision is not nearly so wide as some people imagine.
However, the effect of the amendment would be to go further and confine the use of the power just to Crown servants or government contractors. As I have tried to explain, we believe that the criteria are properly met in respect of some office holders—such as the Security Commission—who are not Crown servants. I recognise that one way around the problem would be to invite Parliament to approve the prescription of such eminent persons so that, for the purposes of the Bill, they are Crown servants. I am not sure, whether, if the Government had proposed this, it would not be seen as what one might describe as a Houdini manoeuvre; that is, a way of getting out of binds which the legislation should not have imposed in the first place. Nor am I sure whether it is right, or necessarily welcome, that those who hold such office should be formally prescribed as Crown servants.
However, there is more to this issue than that. The purpose of notification is to identify personally and directly those who share the same trust as a member of the services. We are making provision in primary legislation which needs to take reasonable account of possible future eventualities. We cannot say today what the situation may be in the future. There may come a time when a Minister quite properly decides that someone who is not a Crown servant or government contractor must be notified because of his or her connection with the services and because the interests of national security require
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it. The requirement can be crystal clear: there would be no doubt about it. But, under the amendment proposed, the Minister could do nothing about the matter—or, at least, he could do nothing other than introduce amending primary legislation, or lay a prescription order.
The effect of such an order would be to identify publicly all those, other than Crown servants or government contractors, who meet the criteria for notification. Such people may be just the sort of people who cannot be identified publicly. They may indeed be under greater threat and risk if they were to be identified publicly. The result would be that national security would require his notification because that is part of the criteria in Clause 1(6), but national security would prevent his notification. That is a curious position to be in. I do not believe that that is the effect that Members of the Committee wish to achieve, or that it would be right to achieve it. Nevertheless, that is what the amendment would lead to.
Therefore, for the reasons I have given, I do not think it is necessary for the Committee to introduce such an anomaly in order to ensure that in today's circumstances the power is operated as I think Members of the Committee would wish. On the basis of the assurances which I have given, I hope that Members of the Committee will agree that the Bill is best left as it is.
Lord Bonham-Carter: I am not sure whether I wholly understood, or followed, the last part of the noble Earl's explanation regarding the anomaly. However, tomorrow I shall read in Hansard what he said to see whether in the light of day I can understand what the anomaly is, and why it is so undesirable. I must confess however that I am reassured to some extent by what he said in three respects. First, I understand that someone who believes that he has been wrongly notified will be able to apply for judicial review. To have that fact on record is indeed a comfort, and I am glad to have it confirmed.
Secondly, I understand that notification cannot be made retrospectively. I think that that is an important point. I had not understood that fully—although, perhaps I should have—and I am glad to have had it explained to me. Thirdly, the noble Earl has set forth the categories of people who may be notified. We now also have that on record and it is indeed a comfort. It means that the journalist and the doorman—the two examples which I used—could not or would not, as I understand it, be notified unless under very peculiar circumstances. In the light of those explanations, I am prepared to withdraw the amendment.
Amendment, by leave, withdrawn.
9.30 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 10:
Page 2, line 19, leave out subsection (7) and insert—
("(7) A notification for the purpose of subsection (1) above—

(a) shall cease to be in force after a period of four years from the date on which it was served unless before the end of that period the Minister issues a further notice in writing under subsection (6) above;

(b) may at any time be revoked by a notice in writing served by the Minister on the person concerned;

and the Minister shall serve such a notice as soon as, in his opinion, the work undertaken by that person ceases to be such as is mentioned in subsection (6) above.").
The noble and learned Lord said: Clause 1(7) provides:
"A notification for the purposes of subsection (1) above shall be in force until revoked by a further notice in writing served by the Minister on the person concerned; and the Minister shall serve such a further notice as soon as, in his opinion, the work undertaken by that person ceases to be such as is mentioned in subsection (6) above".
There is an indefiniteness about the period when the notification for the purpose of subsection (1) is to continue in force. This amendment proposes that:
"A notification for the purpose of subsection (I) above—

(a) shall cease to be in force after a period of four years from the date on which it was served unless before the end of that period the Minister issues a further notice in writing under subsection (6) above;

(b) [it] may at any time be revoked by a notice in writing served by the Minister on the person concerned;

"and the Minister shall serve such a notice as soon as, in his opinion, the work undertaken by that person ceases to be such as is mentioned in subsection (6) above".
That is a helpful suggestion and it may be that at last we shall achieve the acceptance of an amendment from the Government Front Benches. As I have indicated, it limits the length of time of a notification that a person is subject to an absolute duty of confidentiality. Under paragraph (a) the notification must be renewed every four years. Paragraph (b) repeats the present provisions of Clause 1(7) of the Bill. The effect of the amendment is to prevent the Minister issuing a notification and, through his failure to review it, leaving it in force indefinitely and even after the person ceases to be employed in sensitive work. I submit that these are reasonable and helpful suggestions. I beg to move.
Lord Renton: This amendment is not entirely unreasonably; I grant that.
Lord Elwyn-Jones: Come and join us!
Lord Renton: It is harmless and quite unnecessary. It would merely increase the administrative effort that will lie behind the administration of this notification procedure. The last few words of subsection (1) say,
"while the notification is or was in force".
The noble and learned Lord seeks to leave out subsection (7). In that subsection there are the words,
"A notification …hall be in force until revoked by a further notice.…".
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So there is a great deal of flexibility in the Bill as it stands. All the amendment does is to insist that every four years there shall be carried out a procedure either for perpetuating the notice or for revoking it automatically. I should have thought that this was introducing unnecessary bureaucracy.
Lord Mishcon: We have reached a situation where, first, all amendments, unless they be moved from the Government Benches, are unreasonable and therefore should not be allowed. The second stage is that, while they are quite reasonable, it is nevertheless appropriate not to agree to them. The third stage has now been reached; they are perfectly reasonable but they are unnecessary. I wonder what further classification will be used from the Benches opposite in order to ensure that not one word of the Bill is altered and that not all the combined thinking of members of the Opposition in your Lordships' House will ever penetrate through the Government's very substantial armour.
Somebody who receives notification is, we recognise, under a very great duty. If he breaks the confidentiality which is very properly enforced, as we all admit, by this Bill, he will commit a criminal offence. It is therefore necessary to see that there is justice. Sometimes bureaucracy or administration assists in justice and therefore justifies its existence.
We are not asking for a period of time which is one year afterwards or two years afterwards. If in answer to the amendment the Minister says, "Four years is not reasonable, make it six", then one would realise that the situation is at least being dealt with. It is not just negligence on the part of a government department that somebody has not said, "Well, we now realise that you are no longer under these very strenuous duties. You received a notification; we are now withdrawing it". There is a duty upon the Government as well to stop people from being under a criminal sanction.
In these circumstances, I await the Minister's reply with interest and hope that he will not adopt the formula of the noble Lord, Lord Renton, that while it is all very reasonable, it is rather unnecessary. I hope therefore that the amendment will be agreed to.
Lord Renton: Before the noble Lord sits down, I wonder whether he would consider that if one inserts "four years", that is likely to become the norm, and in practice it will destroy the flexibility already in the clause. There may be many cases in which the notification could be revoked well before the four years, but people might say, "Well, it has to be reconsidered anyway in four years. Let it stand for four years and then we shall see". Is it not better to have the flexibility in the Bill?
Lord Mishcon: The noble Lord, Lord Renton, said that he was making his intervention before I sat down. I could not have sat down with any contentment at all, listening to what the noble Lord said, therefore I am still standing. If the noble Lord will be good enough to read the amendment he will

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see that there is the possibility of every flexibility, because it states that the notification will only have to be revoked or renewed at the end of four years if before the end of that period the Minister has not issued a further notice. In other words, quite obviously he can revoke it before the end of four years, if he so wishes.
The point is that he has to examine the situation or a civil servant has to examine it at least every four years to see whether the heavy sanction is still applicable. But naturally there is nothing to stop anyone from revoking it before the end of the four years. Obviously the flexibility exists.
Earl Ferrers: I hate to intervene in the dialogue going on between the noble Lord, Lord Mishcon, and my noble friend Lord Renton. I do so because I wish to address the minds of Members of the Committee to the Government view of the amendment. Just before dinner, the noble Lord, Lord Mishcon, told me that he did not understand the logic of the question which I had asked him. I can tell him that I understand the logic of the amendment which was moved by the noble and learned Lord, Lord Elwyn-Jones, who described it as reasonable and helpful. I can quite see the reason why he did so describe it. I do not think the noble Lord, Lord Mishcon, should fear that it is so difficult to get through what he described as the Government's thick skin.
I understand the concerns of the Committee that a person should not be notified and then forgotten. I can assure the Committee that there is no danger of that happening, if for no other reason than because there will be a statutory requirement to revoke notification in Clause 1(7) of the Bill. I agree with my noble friend Lord Renton that there is a danger that this amendment could add a bureaucratic procedure with little particular purpose.
Clause 1(7) places a duty on the Minister to revoke a notification as soon as the work of the notified person ceases to meet the criteria in Clause 1(6). So, as soon as the person's work ceases to be connected with the security and intelligence services, or as soon as the nature of that work ceases to be such that the interests of national security require that the person should be notified, the Minister is under a clear and unavoidable statutory obligation to revoke the notification.
Of course, in practice a person's work does not cease to be connected with the services, nor does its nature change, unless there is some decision to vary the responsibilities of that person or he moves to other work or he retires. All of these are predictable and conscious changes and the administrative machinery will build into the plans for such changes a consideration by the Minister of the need for notification and, if the Minister concludes that the criteria are no longer met, the revocation of that notification. There is no need to wait four years for this to have effect; it must happen as soon as the person's job no longer meets the criteria.
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The procedures in the amendment would therefore only have any practical effect where, after four years, the person was still carrying out work which required continued notification. That may well be so in some cases. But, under the Bill, it could only be so because the conditions for revocation had not been met. The effect would therefore be renotification every four years. That would be another administrative process and would involve further pieces of paper, such as my noble friend Lord Renton feared.
The danger would be that this renotification process could, and I say only could, make for less vigilance and rigour in considering those first notifications where the person's work must properly be considered with the utmost care. I can assure the Committee that under the Bill, notification should not and cannot last a day longer than necessary.
I realise the reasonableness of the view of the noble and learned Lord, Lord Elwyn-Jones, and for the reasons which I explained I do not consider the amendment is necessary to achieve the effect which he desires. I am also concerned about the degree of bureaucracy it would involve. However, I understand the concern of the noble and learned Lord, and, if it will help the Committee, I shall certainly give the matter further consideration before the next stage.
Lord Elwyn-Jones: This is a glorious and memorable moment. I am not sure this is not the first time that we have heard those encouraging words today. It is better to hear them later than never. I am delighted to accept the undertaking of the noble Earl and in the circumstances, I shall sit down.
Earl Ferrers: Before the noble and learned Lord withdraws the amendment, I should say that I was merely trying to point out to him, and to his noble friend who sits behind him, that the Government's skin is not quite as thick as it is sometimes made out to be.
Lord Elwyn-Jones: I shall not go into an adjectival description of the Government's skin which seems to me pretty hidebound. However, in the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 11:
Page 2, line 24, after ("the") insert ("lawful").
The noble Lord said: I wonder whether we have now reached the stage when the words "favourable consideration" could be used to enhance the Government's lately expressed goodwill. I tried to make my language a little more poetic, and rather than describing the Government's attitude as thick skinned I talked about their impregnable armour. I am optimistic that in relation to this amendment I shall receive "favourable consideration" even if the amendment is not accepted, if that is not expressing too much optimism.
I should have thought that nobody is trying to protect unlawful activity. I say that particularly in view of the fact that we recently considered a

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Security Service Bill in which MI5 was made a statutory institution for the first time. What were on many occasions the illegal activities of an unrecognised organisation were put into the form of law so that many activities are now perfectly lawful within the precincts of MI5, in the sense that they have been given a procedure for entering premises, for example, after the issue of a warrant.
Here we are considering a situation in which only unauthorised disclosures about the lawful activities of the security and intelligence services would be offences. That is the position we are trying to create under this amendment. As the Bill stands—and I am sure that the Government and all Members of the Committee will recognise it—it would be an offence for someone to reveal evidence of illegal actions by the services.
A very dramatic example was given in the other place. Let us take it for granted that, completely contrary to the spirit of the Security Service Bill, somebody in the intelligence service taps a telephone without a warrant with the sole object of promoting the interests of a political party. That fact is notified to a Member of Parliament whose telephone has been illegally tapped. However, a member of the security services would commit an offence if he so informed the Member of Parliament. That example was given to the Minister, who had to concede that as the Bill is now worded, in such a case a criminal offence would have been committed.
Before I sit down I shall repeat that that information is passed on by a member of the security service who knows that a colleague of his has illegally, without a warrant, tapped the telephone of a Member of Parliament for the sole purpose of obtaining some form of favoured treatment for a political party. The information concerns only a political intent and has nothing to do with intelligence or the security of the country. If any civil servant told that Member of Parliament, as the Bill now stands he would be committing a criminal offence. That is why we ask for the word "lawful" to be inserted here so that that position is rectified. I beg to move.
Earl Ferrers: One of the dangers of saying that one will consider something, which is a fairly modest description, gives the noble Lord, Lord Mishcon, the taste of honey. He hoped that this amendment would also be given favourable consideration, which was one rung up the ladder.
I recognise the intention of the amendment and, as usual, the noble Lord has put the case very persuasively, but I do not accept the implications of his amendment. It would be wrong for me from this Dispatch Box to give counsel to those who make allegations about the activities of the security and intelligence services, and I know that noble Lords would not expect me to do so. But I would not need to follow the argument down that path in order to show noble Lords that this sort of qualification to the protection necessarily provided by this clause would make the provision unworkable. It would be unworkable because it would require the prosecution to make full and detailed disclosures of the operations of the security and intelligence services in order to show that they were in fact lawful.
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I think that most noble Lords agree that the well-being of this country and the safety of its citizens demand that information relating to the work of the security and intelligence services must be protected. This amendment undermines that protection by allowing anyone who makes an unauthorised disclosure to argue that he has not committed an offence because his disclosure related in some way to unlawful behaviour. If the amendment were accepted, it would not matter how much damage was caused by the disclosure; if the prosecution could not prove that the information in question related to lawful activities, the person concerned would not have committed an offence. The unlawful behaviour need not be a criminal offence. The damage caused by the disclosure could be untold, but the protection of the criminal law would be lost. The amendment would be an invitation to make revelations about the work of the services under the guise of disclosing some form of unlawful activity.
I believe that the amendment would make the clause unworkable. The prosecution would be required in every case to show that the disclosure related to lawful activities. To prove that the prosecution might well need to reveal highly sensitive operational secrets. The practical effect would be that, in order to avoid doing further damage, very often no prosecution could be brought at all.
I fear that this is an example of how a worthy sounding amendment, carefully delivered, would in fact wreck that part of the Bill
Lord Monson: Before the Minister sits down, will he give a couple of examples of the soft of unlawful behaviour by the security services that would not constitute a criminal offence?
Earl Ferrers: I do not think that it is particularly helpful to give examples. I was trying to explain to noble Lords that, if one has to prove in law whether an action was lawful or unlawful, it means that one has to prove that the work done was in fact lawful. One therefore goes to a great deal of trouble to produce a whole lot of evidence—evidence which should not come to the court in the first place—showing precisely why the action was lawful. That is done in order to show whether or not the work was lawful or unlawful. That is why one discloses a whole lot of information about the security services which should not be disclosed.
Lord Mishcon: I am trying to meet absolutely fairly the argument put by the Minister. I am trying to see what onus there would be on the prosecution which would be an unfair onus. Let us assume that there has been a 'phone tapping. Either a warrant has been issued or it has not. A witness attends on behalf of the prosecution to say that a warrant was in fact granted—full stop. He does not have to say why it was granted. He does not have to mention any names. The warrant was granted by the Minister. That immediately makes it lawful. There are lawful activities of the intelligence services set down in the Bill that was recently before this Chamber.

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With complete sincerity I wonder whether there is a greater balance in favour of justice and the proper administration of the intelligence and security services where there might be an occasional difficulty (although I cannot think of one for the moment) as against the blatant example mentioned in the other place and which I gave to the Committee where the Minister had to admit that a criminal offence would be committed. In my view the greater injustice is done by the omission of the word "lawful" rather than by leaving matters as they are so that a crime is committed even when unlawful activities are divulged.
I cannot add anything. I merely tell the Minister that we are doing extraordinary things under this Bill. It is all very well to talk in terms of getting rid of the wide aspect of Section 2. So many people have described it as the ill fated, ill remembered, or ill wanted Section 2. We are now introducing into our criminal law and in so-called protection of our intelligence and security services the addition of offences which I find truly remarkable; namely, that unlawful activities divulged can lead someone to commit an offence.
Lord Renton: I wonder whether I can set the noble Lord's mind at rest. I shall try to do so. Even if the prosecution does not have to prove that an activity was lawful, if it transpired either in the course of considering the case for trial or after the trial began that the so-called breach of security arose out of an unlawful activity, is it not unthinkable that the prosecution could proceed? Further, if the case came somehow before the High Court for judicial review and in the course of its investigation it was found that the problem arose from an unlawful activity, that also would be an end of the case.
So, although we are not putting upon the prosecution the burden—the formal obligation, as the noble Lord would have it—of proving that the activity was lawful, as soon as it became clear that it was unlawful surely that would be an end of the matter.
Lord Mishcon: The noble Lord directs at me his question and his very helpful comments, as I am sure he believes them to be. It is not my interpretation of the law; it is the Minister's interpretation. In another place Mr. Patten, the Minister at the Home Office—and I shall give the reference with the greatest of pleasure to the noble Lord if he desires it—was faced with the question of whether or not, in the example given, the member of the security service concerned would have committed a criminal offence, and his answer was, yes, he would have.
The answer to the noble Lord is that if we leave the Bill as it is, nobody would have a chance of examining that situation. In my humble opinion the judge would have to rule that it does not matter whether or not the security service had in fact acted unlawfully. He could not stop the case because of that. He could not allow evidence to be called in regard to it or insist upon evidence because we are making it an absolute offence, as the Minister conceded in the other place, even if the act of the
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intelligence service was unlawful. That obviously is the complete answer—if the noble Lord will forgive my saying so—to the intervention that he made.
Lord Renton: I do not think a judge would behave like that.
Lord Hemingford: If noble Lords do not like the amendment perhaps they can suggest a better remedy for the problem that the noble Lord, Lord Mishcon, has raised.
10 p.m
Earl Ferrers: The noble Lord, Lord Mishcon, fairly draws to the attention of the Committee a matter about which he is concerned. He says that we are entering a new part of the law which frightens him. One must always bear in mind that the area of legal infringement has, as a result of this Bill, been enormously reduced. We are therefore left with only a small part of it where there will now be legal infringement by breaking the law.
I draw the attention of the Committee to what the Bill states. It states:
"in this section 'security or intelligence' means the work of, or in support of, the security and intelligence services".
If the word of the noble Lord's amendment is inserted, it would read,
"In this section 'security or intelligence' means the lawful work of, or in support of, the security and intelligence services".
That infers that there are two types of work: lawful work and unlawful work. That means that in order to prove whether the crime undertaken is in fact a crime, the first thing that the prosecution has to prove is that it was lawful. In doing that the prosecution has to go through all the procedures explaining why what has been done is lawful. In order to do that it will have to explain what has been done. That would release a very great deal of information which might be undesirable.
The insertion of the word is in order to try to cover a relatively small although important point that the noble Lord, Lord Mishcon, raises. He gave the example of telephone tapping. If a member of the services were to act in the way that the noble Lord, Lord Mishcon, adumbrated then the member of the services who discovered it should report it to his superiors immediately. They would take the necessary action including involving the police so that any criminal charges could be brought. There is no need for this amendment in order to ensure that that situation is properly provided for
Everyone in this country, whatever he is doing, is subject to the law. If he breaks the law that is a criminal offence. If the proposition that the noble Lord suggests were to be accepted there is a perfectly good remedy in the law as it stands because he is committing a criminal offence. However, to insert the word of the amendment into the Bill would open up a whole host of problems. The prosecution would have to prove that the work which was done was lawful.
I hope that the noble Lord will realise the complications which his modest amendment, as it appears, would produce.
Lord Mishcon: To say that I am happy would be a wrong way to describe anyone's attitude at this hour of the night. I am increasingly unhappy with the reply of the Minister. However, this is not the time to continue this argument. Therefore, hoping that I can raise the matter to more advantage at an earlier hour at another stage of the Bill, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [Defence]:
[Amendments Nos. 12 to 14 not moved.]
Clause 2 agreed to.
The Earl of Dundee: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at five minutes past ten o'clock.

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  SCOTLAND: REMAND PRISONERS' FACILITIES
  SCOTLAND: REMAND PRISONERS' FACILITIES
  SCOTTISH PRISONERS: EDUCATION FACILITIES
  SCOTTISH PRISONERS: EDUCATION FACILITIES
  SCOTTISH LEGAL AID EXPENDITURE: PRECOGNITION OF WITNESSES
  SCOTTISH LEGAL AID EXPENDITURE: PRECOGNITION OF WITNESSES