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Miss Ann Widdecombe
Mr. Irvine Patnick
Mr. Barry Field
Mr. John Browne, supported by Sir Bernard Braine, Mr. Merlyn Rees, Mr. William Cash, Sir Marcus Fox, Mr. Denis Healey, Mr. Ivan Lawrence, Mr. Alex Carlile, Mr. John Hannam, Mr. John Cartwright, Mr. Peter Temple-Morris and Mr. Frank Cook, presented a Bill to establish a right of privacy against the unauthorised use or disclosure of private information ; and for connected purposes : And the same was read the First time ; and ordered to be read a Second time upon Friday 27 January and to be printed [Bill 14].
Mr. Tony Worthington, supported by Mr. Michael Foot, Mr. Norman Buchan, Mr. Joseph Ashton, Mr. David Steel, Mr. Jonathan Aitken, Mr. Merlyn Rees, Mrs. Ann Clwyd, Mr. Austin Mitchell, Mrs. Margaret Ewing, Mr. Peter Temple- Morris and Mr. Robin Squire, presented a Bill to give members of the public the right of reply to correct inaccuracies which affect them in the press or in broadcasts ; to establish a Press Commission ; to extend legal aid to actions for defamation ; and for connected purposes : And the same was read the First time ; and ordered to be read a Second time upon Friday 3 February and to be printed [Bill 15].
Mr. Ralph Howell, supported by Sir William Clark, Sir Eldon Griffiths, Mr. Ted Garrett, Sir Rhodes Boyson, Sir Marcus Fox, Mr. Jim Lester, Dr. Keith Hampson, Mr. Tony Favell, Mr. John Greenway, Mr. Tim Smith and Mr. Allan Stewart, presented a Bill to provide for a national identity card system for all residents of the United Kingdom : And the same was read the First time ; and ordered to be read a Second time on Friday 10 February and to be printed [Bill 16].
Mr. Andrew Mackay, supported by Mr. John Carlisle, Mr. David Davis, Mr. George Gardiner, Sir Eldon Griffiths, Mr. Denis Howell, Mr. Archy Kirkwood, Mr. Patrick McLoughlin, Mr. Andrew Mitchell, Sir Charles Morrison, Mr. George Robertson and Mr. Nicholas Soames, presented a Bill to exempt races, athletics sports and other sporting events from the entertainments and amusements to which the Sunday Observance Act 1780 applies and to allow betting to take place on all or some Sunday afternoons on tracks and on a number of Sunday afternoons in licensed betting offices and to make provision as to the rights of established employees concerning Sunday working : And the same was read the First time ; and ordered to be read a Second time on Friday 17 February and to be printed [Bill 17].
Ms. Joan Ruddock, supported by Ms. Jean Walley, Ms. Harriet Harman, Mr. Frank Cook, Mr. Tony Banks, Mr. Simon Hughes, Mr. Dafydd Wigley, Sir George Young,
Column 456Sir Hugh Rossi, Mr. Robin Squire and Mr. Gerald Bowden, presented a Bill to provide for the registration of carriers of controlled waste and to make further provision with respect to stopping, detaining and retaining vehicles for waste disposal as it relates to the deposit of controlled waste onto unlicensed sites : and the same was read the First time ; and ordered to be read a Second time on Friday 24 February and to be printed [Bill 18].
Mr. Lawrence Cunliffe, supported by Mr. Alfred Morris, Mr. Jack Ashley, Mr. John Hannam, Mr. Charles Irving, Mr. Jonathan Aitken, Mr. Archy Kirkwood, Mr. Jim Lester, Miss Janet Fookes, Mr. Dafydd Wigley, Mr. George Howarth and Mr. Sean Hughes, presented a Bill to establish a Board to make recommendations for the levels of compensation awarded to injured persons ; to place a duty on the courts to have regard to such recommendations and to actuarial evidence in awarding compensation ; to increase the amount of damages paid in the event of bereavement and to extend the categories of persons entitled to receive such damages : And the same was read the First time ; and ordered to be read a Second time on Friday 3 March and to be printed [Bill 19].
Miss Ann Widdecombe, supported by Sir Bernard Braine, Mr. David Alton, Mr. Seamus Mallon, Rev. Martin Smyth, Mr. D. N.
Campbell-Savours, Mrs. Elizabeth Peacock, Mrs. Marion Roe, Dame Peggy Fenner, Mrs. Ann Winterton, Dame Elaine Kellett-Bowman and Dame Jill Knight, presented a Bill to limit the period within pregnancy during which an abortion may be performed, subject to certain exceptions : And the same was read the First time ; and ordered to be read a Second time on Friday 3 March and to be printed [Bill 20].
Mr. John Home Robertson, supported by Sir Anthony Grant, Mr. Roland Boyes, Mr. David Knox, Mr. Ronnie Fearn, Sir Philip Goodhart, Mr. David Marshall, Mr. Stephen Day, Mr. Barry Sheerman, Mrs. Rosie Barnes, Mr. Ieuan Wyn Jones and Mr. Tony Lloyd, presented a Bill to amend the Road Traffic Act 1988 to redefine the powers of the police to administer breath tests ; to make further provision for the deterrence and detection of driving under the influence of alcohol ; and for connected purposes : And the same was read the First time ; and ordered to be read a Second time on Friday 24 February and to be printed [Bill 21].
Mr. Ieuan Wyn Jones, supported by Mr. Jack Ashley, Miss Emma Nicholson, Mr. Malcolm Bruce, Mrs. Rosie Barnes, Mr. Alfred Morris, Mr. Allen Mckay, Mr. Roger Sims, Mr. Dafydd Wigley, Mr. Andrew Welsh, Mr. Peter Thurnham and Mr. John Hannam, presented a Bill to amend the Hearing Aid Council Act 1968, in order to make further provision for the regulation, conduct and discipline of persons engaged in dispensing haring aids ; to amend the composition and procedures of the Hearing Aid Council ; and for purposes connected with those matters : And the same was read the First time ; and ordered to be read a Second time on Friday 10 February and to be printed [Bill 32].
Column 457Ms. Clare Short, supported by Ms. Jo Richardson, Ms. Dawn Primarolo, Mrs. Margaret Beckett, Mrs. Alice Mahon, Ms. Joyce Quin, Mrs. Maria Fyfe, Ms. Joan Ruddock, Ms. Diane Abbott, Mrs. Audrey Wise, Ms. Marjorie Mowlam and Mrs. Ann Taylor, presented a Bill to remove pornography from the press and the workplace : And the same was read the First time ; and ordered to be read a Second time on Friday 3 February and to be printed [Bill 30].
Rev. Martin Smyth, supported by Dame Jill Knight, Mr. Tom Clark, Mr. Jack Ashley, Mr. William Ross, Mrs. Margaret Ewing, Mr. John Hannam, Mr. Paddy Ashdown, Mr. Eddie McGrady, Rev. William McCrea, Mr. Dafydd Wigley and Mr. Ken Maginnis, presented a Bill to make provision equivalent to the Disabled Persons (Services, Consultation and Representation) Act 1986 for Northern Ireland : And the same was read the First time ; and ordered to be read a Second time on Friday 17 February and to be printed [Bill 26].
Mr. Andrew Smith, supported by Mr. John Battle, Mr. Paul Boateng, Mr. Frank Field, Mr. Simon Hughes, Mr. David Knox, Mr. Steve Norris, Sir David Price, Mr. Chris Smith, Mr. Robin Squire, Mr. Nicholas Winterton and Mrs. Audrey Wise, presented a Bill to provide for certain information concerning fire safety to be available to specified persons ; to provide for public inspection of such information ; to require local housing authorities to keep a register of certain information ; and for related purposes : And the same was read the First time ; and ordered to be read a Second time on Friday 24 February and to be printed [Bill 31].
Mr. Andrew Welsh, supported by Mrs. Margaret Ewing, Mr. Dafydd Wigley, Mr. Charles Irving, Miss Janet Fookes, Mr. Clive Soley, Dr. Lewis Moonie, Mr. Simon Hughes, Mr. Archy Kirkwood, Mr. Alex Salmond, Mr. Jim Sillars and Mr. Ieuan Wyn Jones, presented a Bill to provide for access to meetings, reports and documents, subject to certain confidentiality provisions, of housing associations by the tenants of those associations ; to give housing associations a duty to publish certain information ; and for related purposes : And the same was read the First time ; and ordered to be read a Second time on Friday 17 February and to be printed [Bill 33].
Mr. Jimmy Hood, supported by Sir Hector Monro, Mr. Jimmy Wray, Mr. Calum Macdonald, Mr. William McKelvey, Mr. John McAllion, Mr. George Galloway, Mr. Tom Clarke, Mr. Harry Ewing, Mr. Nigel Griffiths, Mr. David Marshall and Mr. Malcolm Bruce, presented a Bill to make it an offence for persons under the age of 18 years to consume alcohol in public places and to impose fines of £1,000 maximum on persons selling, or being agents for the sale of, alcohol to persons under the age of 18 years : And the same was read the First time ; and ordered to be read a Second time upon Friday 10 February and to be printed. [Bill 22].
Mr. Eddie Loyden, supported by Mr. Eric S. Heffer, Mr. Robert Parry, Mr. Terry Fields, Mr. Dennis Canavan, Mr. Harry Cohen, Mr. Dennis Skinner, Mr. Andrew F. Bennett, Mrs. Alice Mahon, Ms. Mildred Gordon, Mr. Martin Flannery and Mr. Sydney Bidwell, presented a Bill to amend the Data Protection Act 1984 to include data held in any form whatsoever for use by a personal information bureau : And the same was read the First time ; and ordered to be read a Second time upon Friday 3 March and to be printed. [Bill 28].
Mr. Andrew Hunter, supported by Mr. Nicholas Bennett, Mr. William Cash, Mr. Sydney Chapman, Mr. Simon Coombs, Mr. Conal Gregory, Mr. Humfrey Malins, Mr. Andrew Mitchell, Mr. David Nicholson, Mr. Lewis Stevens and Mr. Timothy Wood, presented a Bill to repeal section 16(1)(a) of the Clean Air Act 1956 and to amend section 1 of the Clean Air Act 1968 : And the same was read the First time ; and ordered to be read a Second time upon Friday 24 February and to be printed. [Bill 23].
Ms. Joyce Quin, supported by Mr. Chris Smith, Mr. John Bowis, Mr. Archy Kirkwood, Mr. Allan Roberts, Mr. Robin Squire, Mr. Simon Hughes, Ms. Joan Ruddock, Mr. Steve Norris, Mr. Andrew Welsh, Mr. Win Griffiths and Mr. Andrew Smith, presented a Bill to give certain bodies duties regarding information concerning public safety ; to require the designation of a public safety officer by such bodies ; to provide for the keeping of registers of such information ; to provide for public access to that information ; and for related purposes : And the same was read the First time ; and ordered to be read a Second time upon Friday 24 February and to be printed [Bill 29].
Mr. Timothy Kirkhope, supported by Mr. Ted Garrett, Mr. Roger Knapman, Mr. John Battle, Mr. David Curry, Mr. James Cran, Mr. Irvine Patnick, Mr. Robert G. Hughes, Mr. Keith Bradley, Mr. Christopher Gill and Mr. Archy Kirkwood, presented a Bill to amend the Road Traffic Regulation Act 1984 in relation to parking : And the same was read the First time ; and ordered to be read a Second time upon Friday 27 January and to be printed. [Bill 24.]
Sir Geoffrey Johnson Smith, supported by Mr. Tim Boswell, Mr. Alastair Goodlad and Mr. David Harris, presented a Bill to amend section 53(3)(c)(ii) and (iii) and section 56(1) of the Wildlife and Countryside Act 1981 :
Column 459And the same was read the First time ; and ordered to be read a Second time upon Friday 27 January and to be printed. [Bill 27].
Official Secrets Bill
Order for Second Reading read.
Mr. Speaker : Before we start this important debate, I remind the House that a very large number of right hon. and hon. Members wish to speak. I do not think that this is a day on which it would be appropriate for me to impose a 10-minute limit on speeches. However, I hope that hon. Members will bear in mind the fact that many right hon. and hon. Members want to take part and that they will tailor their contributions accordingly.
We ask the House today to agree in principle that the criminal law should be prised away from the great bulk of official information. We propose that it should be used to protect unauthorised disclosure of six limited areas and we shall be asking the House to agree on the scope and definition of those areas. Within the areas to be protected we introduce a number of tests of harm which the prosecution will have to prove. We mean that the criminal law should protect, and protect effectively, information whose disclosure is likely to cause serious harm to the public interest, and no other.
This is a coherent and ambitious reform. It is bolder and more open than anything attempted by any Government in this area since the war. Beside it the Labour proposals in the 1978 White Paper look pale, timid and restrictive. The present law is both too wide and too weak. After 16 years of dickering and dispute since the Franks report, I believe the time has come to settle on the successor to section 2 of the Official Secrets Act 1911.
We published a White Paper in June this year which set out the Government's proposals. It was debated by the House in July. We promised then to listen carefully to the points made in the debate and to take account of them as we prepared the Bill, and we have done so. Before returning to the general theme, I should like to analyse briefly the changes that have taken place between the White Paper and the Bill.
First, the Bill has introduced a harm test for the disclosure of information received in confidence from a foreign Government or international organisation. In the White Paper this was an absolute offence. I listened carefully to the powerful arguments of my right hon. and learned Friend the Member for Richmond, Yorks (Mr. Brittan) and my hon. Friend the Member for Westminster, North (Mr. Wheeler). I hope that we have met their main concerns. This change has not escaped the obfuscation in which some critics have tried to shroud the Bill. The Bill makes it clear in clause 3(3) that the prosecution may argue that the fact that a confidence has been broken may jeopardise our interests abroad as much as the content of the information which has been disclosed. But, of course, there is no obligation on the jury to accept that argument and it does not allow the harm test to be bypassed. There is no absolute offence here-- there is a harm test. The prosecution has to prove that the disclosure jeopardised
Column 461United Kingdom interests abroad. The fact that a confidence was disclosed would not by itself be enough if our interests had not been put at risk.
It seems to me reasonable that the criminal law should operate against those who deliberately breach the confidence of another country or international organisation when they have good reason to know that this is likely to harm our interests abroad. Those confidences are not entered into capriciously. The test in the Bill relates to our national interests abroad, not to the interests of another country or any international organisation--and the decision is for the jury.
We have looked carefully, too, at the harm test as it will now govern the whole of the foreign affairs field. My right hon. and learned Friend the Member for Richmond, Yorks suggested that this test was too vague and too easily met. It is not easy to provide language which draws the line in the right place, but on reflection we thought that there was a way of reflecting the proper concerns of the criminal law without undermining the effective conduct of our foreign policy. We have not introduced in the Bill the White Paper's reference to a disclosure which might prejudice dealings with another Government or international organisation. The test now much more accurately catches its purpose. It is not about maintaining good relations with other countries. Here, too, it is whether a disclosure jeopardises the interests of the United Kingdom abroad.
The White Paper mentioned penalising disclosure of information likely to be useful in the commission of offences. That language has a long pedigree--it goes back to the Franks report, the Labour Government's White Paper, and the Protection of Official Information Bill in 1979. However, it was suggested--for example, by the Guild of British Newspaper Editors--that those words were too vague and too wide. It was never our intention to cover all kinds of information of a general nature that might conceivably be useful in committing an offence, where the chain of circumstance is too long and too uncertain to justify involving the criminal law. The Bill provides a narrower and more precise definition of such disclosure. The prosecution will have to prove that the disclosure resulted in the commission of an offence or was likely to do so.
Fourthly, the Bill makes it clear what information is to be protected in the area of interception. We tie that category specifically and only to the unauthorised disclosure of information about, or arising from, a special investigation. Such an investigation must be undertaken under the authority of a warrant issued by the Secretary of State under the Interception of Communications Act 1985 or, if Parliament agrees to our proposals, under the Security Service Bill.
At one time, the obfuscators whom I mentioned suggested that the press would no longer be able to report a citizen's belief that his telephone was being tapped. The Bill shows that to be nonsense. Changes have been made between publication of the White Paper and the Bill. In the light of comments and constructive criticisms, we now have a Bill that is tighter in its drafting, narrower in its scope, and more specific in its meaning
I return to the main purpose of the Bill.
Mr. Jeff Rooker (Birmingham, Perry Barr) : I refer to the right hon. Gentleman's comment about "obfuscators". Is it still the case that clause 3(3) as drafted will make it an offence to publish a leak of any document from another country or international body, regardless of its subject matter?
Mr. Hurd : Regardless of its subject matter, but there is a test of harm. The prosecution must show that the disclosure jeopardised United Kingdom interests abroad. That is the difference between the White Paper and the Bill.
Mr. Roy Hattersley (Birmingham, Sparkbrook) : It is the word "belief" that worries me. The Home Secretary, referring to people whom he does not name but whom he calls "the obfuscators", remarked that it was wrong to say that a citizen having the "belief" that his telephone is being tapped will be prosecuted and convicted if he reveals that belief. However, if an individual is told by a security service officer that his phone is being tapped under the Interception of Communications Act 1985, will he not commit an offence if he discloses that?
Mr. Hurd : Yes, it will be an offence, because we believe in the duty of confidentiality. If a man believes, as often happens on these occasions, rightly or wrongly, that something is amiss, there is no reason why he should not go to a newspaper, and no reason why the newspaper should not publish. That point is the one that the obfuscators have constantly failed to grasp.
Mr. Tam Dalyell (Linlithgow) rose --
Mr. Hurd : I think that I had better get on. I shall give way to the hon. Gentleman later. I have already given way twice. Many people fail to grasp our proposals, or attempt to trivialise them. Those people include the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley). They suggest--this is the main thrust of the right hon. Gentleman's criticisms-- that we are withdrawing from the protection of the criminal law only frivolous and unimportant information. The example given by the right hon. Gentleman was the canteen menu, the colour of the carpets and the brand of tea bags used. In fact, the Bill will remove the protection of the criminal law from the great bulk of sensitive and important
information--including policy documents, Cabinet discussions on education, on health and on social security, and economic information and budget preparations. None of them will any longer have the protection of the criminal law. Nor will material within the Bill's protected areas which fails to meet the relevant harm test. The obfuscators said, "Ah! The Government may do that, but they compensate by legislating to strengthen the civil law on the duty of confidence--the Government will impose through the civil law what they are withdrawing from the criminal law." I do not see that clause. I do not know where it has been smuggled in. In fact, it never existed. We have studied the "Spycatcher" judgment and have considered its implications and the present state of the law most carefully. I can tell the House that we have no plans to introduce legislation to amend the civil law of confidence.
Then the obfuscators said, "You may not do it that way, but you will do it by discipline ; you are getting out the thumb screws--the inquisition is being prepared."
Several Hon. Members rose --
Mr. Buchan : On a point of order, Mr. Speaker. You, Mr. Speaker, will guide me on this matter, because you know better than I what are the rules of the House. The Home Secretary seems to be making allegations under a cloud of secrecy. As the House is debating the Official Secrets Bill, which the Home Secretary claims will make matters more open, will the right hon. Gentleman tell the House who he means by "the obfuscators"?
Mr. Hurd The hon. Member for Paisley, South (Mr. Buchan) is both literary and literate. Does he really feel that "obfuscators" is an unparliamentary expression? I have given one example and I will give others.
The obfuscators argue that the Government will seek to achieve through tighter discipline the effects that we are renouncing by withdrawing the protection of the criminal law. Even the most chaotic newspaper or any kind of private company seeks to provide for the protection of loyalty and discipline by rules of discipline. Now that the criminal law is to be withdrawn from a great mass of information, the Civil Service code needs to take account of that in its ground rules, but there will be no tightening of disciplinary arrangements and the necessary rewriting will be discussed with the trade unions. All kinds of tricks and traps have been suggested, but the obfuscators have failed to prove the existence of any of them.
Mr. Robert Sheldon (Ashton-under-Lyne) : I find it difficult to understand what is going on. If by "obfuscators" the right hon. Gentleman means opponents, will he say so? I do not know what he means by "obfuscators".
Mr. Hurd : It is quite clear and the right hon. Gentleman knows perfectly well what the word means. It is one thing to criticise the merits of the proposals but another to obscure their description. I suggest that both processes have been at work.
It is not safe to remove the protection of the criminal law from all official information. Those who disclose official information without authority may cause such a degree of harm to the country's interests that it is right that they should face criminal proceedings. The criminal law is as necessary to protect the public interest in this area as in any other.
If we are to provide protection in those limited areas, the law must be effective. We need make no apology about that. There can be no credit to Parliament in passing legislation that it knows to be flawed or fudged, and it is against that yardstick that I analyse briefly the arguments of those who wish to overlay the specific definitions and tests in the Bill with blanket defences claiming prior publication and disclosure in the public interest.
Column 464The defence of prior publication, if accepted, would mean that anyone who can show that his disclosure had been previously published at any time, or in any form, or anywhere, could in no circumstances commit an offence by his disclosure. That is an offer of immunity from prosecution that the House should not accept. Under our proposals, prior publication can be relevant to a prosecution and, for the first time ever, that fact is recognised by the Bill. With the very narrow exception of special investigations, the jury will always have to consider whether a journalist who publishes information which has already appeared elsewhere in fact caused the specific harm provided in law and had good reason to know that publication would cause that harm. It will be for the prosecution to prove both the harm and the knowledge of harm, and to do so beyond reasonable doubt.
If such cases are ever brought, in many instances they will fail at that point if there had been prior publication. The defence will successfully argue that prior publication means that the disclosure which is the subject of the prosecution has done no further harm--but not always, as there may be circumstances in which the timing and placing of a fresh publication is bound to cause harm which earlier publication had not. A front-page spread in a daily newspaper, for example, on an item previously carried in a technical journal in another country might cause serious further harm. There cannot be any certainty about such matters, and a sensible provision should not suggest that there can. That is why we propose to leave the matter with the jury to decide rather than admitting an overarching defence.
Mr. Jonathan Aitken (Thanet, South) : On the last point, is my right hon. Friend ignoring completely the historic judgment of the Hon. Mr. Justice Caulfield in the Sunday Telegraph case, in which he said that there is not a limited circle in which it is right to publish and avoid prosecution but a wider circle in which one can publish and be prosecuted-- in other words, there is not one standard for publication for a tiny audience and a different standard for a wider headline or enlarged circle?
Mr. Hurd : It is a question of the harm done to the public interest. I should argue, on the ground of common sense, that it is perfectly possible to have partial, incomplete publication in a distant publication with no particular circulation and then to argue that to pick up that information, put it in a different form and splash it across the news, so causing major circulation, would provide a further harm. We cannot assume in advance that it would not and it would be foolish to admit an overarching defence of prior publication. That is why we propose to leave the matter to the jury.
Mr. Dalyell : Does the Home Secretary recollect that in the Zircon affair important details were published in a technical journal? One of the subscribers to that technical journal was the relevant technical office in Moscow. Which does the greater harm--the technical journal which gives the details, or a front page imprecise spread? In the name of common sense, let us think about that.
Mr. Hurd : That is the speech which a defence lawyer would make in that case and which might prevail. All I am saying is that it is wrong to have an overarching defence of prior publication regardless of the circumstances.
Column 465Our decision to sweep away the proposal for a ministerial certificate and to replace it with clear and objective criteria for the jury has also changed the whole context of the debate about the so-called public interest defence. So, indeed, have the proposals in the Security Service Bill.
There are those who have sought to bolster their case for a public interest defence by suggesting that there is, at present, a public interest defence in section 2 of the Official Secrets Act 1911. I have studied the arguments as carefully as possible, but they do not stand up. On the basis of the judgments that have been cited as relevant here, we cannot find one that suggests that there is such a defence in the present law. Many have sought to argue such an interest, but the judgments have never given cause to accept that argument. We are talking about the proposition that there should be a defence, rather than that we should retain an existing defence. We do not believe that a blanket defence of public interest should have a place in the proposals.
It is for Parliament to make clear to the courts what it believes to be in the public interest for the protection of official information. We are asking Parliament to say that it is not in the public interest knowingly to damage the work of the security and intelligence services, knowingly to prejudice the capability of the armed forces, knowingly to jeopardise our country's interests abroad, knowingly to put our citizens' lives at risk, knowingly to add to the crime rate or knowingly to disclose details relating to special investigations under authorised warrants. The House will realise that I have run through the specific harm tests.
The Bill provides that the jury shall consider whether such public interest tests have been met in respect of an individual case. The public interest will be at the heart of the case. The defendant will be able to argue that his disclosure either did not satisfy any relevant harm test or that he had no reason to know that it did. For someone who was not a Crown servant or Government contractor--a journalist, for example--it would be for the prosecution to prove that beyond all reasonable doubt.
Many supporters of a public interest defence have argued that a person may make a disclosure which does good and not harm, or that any harm done may be so modest as not to merit a criminal sanction. The Bill invites Parliament to establish the few areas and the few cases in which a disclosure always causes harm and, in all the other areas, provides a harm test which allows the defendant to make precisely these points. That is what a harm test is all about and that is why we have included it in the Bill. The Bill does not allow someone to say, "Yes, I know my disclosure did the damage set out in the legislation, and what's more I knew that it would, but I divined a different public interest which, in my view, justified my otherwise criminal action".
This is the heart of the real argument. If people think that such arguments should be allowed, that the court should be left to balance some sort of competing interest, that it is all right that lives should be lost, or the national interest endangered, so long as one public servant's perception of maladministration, wrongdoing or misconduct can be aired in the press, we are close to saying that these are not matters which can be regulated by the criminal law. We would be close to saying that it is more properly a matter of dispute between the Government and
Column 466one of their employees whether a disclosure is in the public interest and that it is a matter that should be settled by a civil court on the balance of probabilities.
I do not think that the House should banish the criminal law from these matters. The House will wish to discuss whether we have identified accurately the matters to be protected by the criminal law and whether we have got the harm test right, but I do not believe that we should accept a general public interest get-out, which has no place in the operation of this law.
Let us consider a practical example. In the area of defence, because of the harm test, the prosecution would have to prove that the disclosure was likely to prejudice the capability of the armed forces and that the defendant knew that that was likely. That might be a hard thing to prove. It would be in order for the defendant to argue, if he could, that so far from prejudicing the capability of the armed forces, his disclosure had enhanced it or had, at least, not prejudiced it. I believe that no responsible person should argue that, while he knew that his disclosure would prejudice the capabilities of the armed services to defend us, it was justified on other grounds--that he believed, for example, that it was in the public interest that the misconduct of a Minister should be exposed or that the Government's defence policy should be reversed. That is the nature of the overarching public interest defence which some people propose.
Mr. Tony Benn (Chesterfield) : I wonder whether the Home Secretary can help the House on the test of international relations. Since the Official Secrets Act 1911 was passed, this country has entered into wholly new relationships with other Governments--notably through the Common Market. Eighty per cent. of the legislation that we used to pass is now to be dealt with by the Commission. All negotiations up to the passage of those directives or regulations will be international in character and any Minister going to Brussels to attend the Council of Ministers for matters which may affect meat distribution or matters of great concern will be covered by international relations. Is it not the case that with the growth of an international impact on our national life and by protecting all international contact the Home Secretary has enormously extended the area of secrecy protected by statute into the area of legislation applying to the citizens of this country?
Mr. Hurd : No, because those disclosures are already included. The right hon. Gentleman is making the point that my right hon. and learned Friend the Member for Richmond, Yorks made in July. It is partly because we accept that there is some validity in that argument that we have introduced the harm test. The test will be a stiff one on whether the disclosures of information received from abroad or from international organisations in confidence jeopardise the United Kingdom's interests abroad. The point raised by the right hon. Member for Chesterfield (Mr. Benn) has been met in the Bill.
I recognise that there are some Members of the House who find the argument about public interest hardest in the context of our proposals that members of the security and intelligence services, and some who work with them, must continue to be subject to the criminal law if they make any unauthorised disclosure about their work. The very fact
Column 467that we argue, as we have consistently argued, that such people cannot talk about their work creates a secret garden which journalists and others naturally want to enter.
It is right that there should be safeguards and controls in this area. That is why we have introduced the Security Service Bill which proposes clearer controls and safeguards. However, I do not believe that further safeguards should be provided by giving members of the services open access to the front pages of the national newspapers. The Security Service is there to protect the nation as a whole. The services can protect us effectively--for example, against terrorism--only to the extent that their operations stay secret. That is the difficulty with which the House wrestled when discussing and approving the Security Service Bill last week. If members or former members of the services make unauthorised disclosures, they may be putting at risk the lives not only of their colleagues but of all of us. They are aware of that when they volunteer and take on the work initially. Many operations depend on the use of techniques, the details of which are not known and for which there are no other means of averting the threat. Many operations depend also on people who help the services knowing that their help will never be made public. That is why a disclosure by a person claiming to be a member of the services can shake that trust and cause deep damage. I hope that the House will understand the reason behind the special offence that we propose for those people.
In recent years we have moved forward in that area. We now have the independent staff counsellor for the security and intelligence services. He is there to ensure that anxieties of members of the services about their work, if they exist, can be considered at the highest levels. We have introduced the Security Service Bill, to which the House gave a Second Reading last week, which will make clear for the first time in statute the extent of the Security Service's remit and the authority and control for its activities. Those members of the public or organisations who feel aggrieved by the Service's activities will be able, once the Bill is enacted, to take their complaint to an independent tribunal, as they can already take a complaint about the interception of their communications to an independent tribunal.
Mr. Graham Allen (Nottingham, North) : Would that really be the appropriate venue for an individual to go to with such a complaint if, for example, a serving officer in the security services finds a plot involving potential assassinations or the destabilisation of a Government? Would that really be the appropriate place for an effective remedy in such circumstances?
Mr. Hurd : In such a case an officer would use the staff counsellor. That would enable him to bypass his superiors. That is new since November last year. I hope that the hon. Gentleman will take it into account.
The point that I am making is that there are now effective and reasonable ways for members of the security services and others affected to ensure that anxieties are not smothered and that concern about wrongdoing is not overlooked. The aggrieved insider, about whom the hon. Gentleman is concerned, and the aggrieved citizen outside are now both catered for. Those who suggest that members of the services should be free to make unauthorised disclosures about their work to members of the public or
Column 468to journalists have failed to recognise that there are now better avenues for considering such matters. These are all matters of balance and judgment. However, in making that judgment, they are making a judgment that could leave our security dangerously exposed. I have tried to deal with some of the real anxieties and with some of the obfuscation to which the White Paper and the Bill have given rise. It does sometimes happen--right hon. and hon. Members will have their own examples- -that critics of a measure create a caricature in which they genuinely come to believe. I remember that that was the case with the first big Bill that I helped to take through, which became the Police and Criminal Evidence Act 1984. There was a great deal of tumult and many distortions and heated meetings going far beyond anything which Mr. Des Wilson has so far been able to contrive. In the end, the Bill was passed, the tumult subsided, the interest groups turned to something else, and the Act struck the balance that Ministers had described when defending it. I think that it will be so with this Bill also.
The Bill is not, and does not pretend to be, a freedom of information Bill- -[ Hon. Members :-- "Oh."] But it comes--perhaps hon. Members will not accept this either--from a Government who have freed more information, especially as regards the security services, than any of their recent predecessors. The Bill lifts from journalists much of the tension inherent in the present law. I do not feel a great deal of sympathy with those to whom I have listened for decades as they lament the tyranny of section 2 but who complain today with equal melancholy now that they are to be relieved of it, especially when they have not studied carefully the nature of the relief. I should like to take the House back 11 months, to the aftermath of the unhappy debate on the Bill introduced by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd). I agree entirely that it was an unhappy moment. It was widely supposed that the Government were doing just a little perfunctory work as an excuse for voting against the Bill but that that work would trickle away and come to nothing. Even if we did venture on a proposal, it was supposed, even by my hon. Friend the Member for Aldridge-Brownhills, that in that proposal ministerial certificates would reign supreme. There was no suggestion that we were planning to put the Security Service on a statutory basis or provide a remedy for the aggrieved citizen. It was assumed, by and large--I would say overwhelmingly--that we would stay stuck in the trenches that had been dug deep and manned devotedly by the Labour Government in the days of the right hon. Members for Birmingham, Sparkbrook (Mr. Hattersley), for Morley and Leeds, South (Mr. Rees) and for Plymouth, Devonport (Dr. Owen).
However, there is a little bit of a change, is there not? Surely fair- minded hon. Members will accept that there is a little change. We are now exactly in the position which in January I hoped that we would be in by this time. I am proud to be the sponsor and mover of the Security Service Bill and of the Official Secrets Bill. As these clouds of obfuscation--I say that for the last time--roll away, this Bill will be seen for what it is and, indeed, these two measures will be seen for what they are. They are certainly conservative measures in that they have at their heart the effective protection of the citizen from specific and grave dangers. However, they are also radical reforms because they open windows that have remained closed and
Column 469cobwebbed, because they define clearly what has been confused for a long time, and because they strike in 1988 a balance that is designed for today.
The Bill will greatly reduce the scope of the criminal law. It will provide a modern, fair and effective way of protecting this country's necessary secrets. I commend it to the House.
Mr. Roy Hattersley (Birmingham, Sparkbrook) : Since the White Paper on this subject was published, and perhaps before--during the debate on the private Member's Bill introduced by the hon. Member for Aldridge-Brownhills (Mr. Shepherd) the Home Secretary has chosen to defend his proposals in an extraordinary way. I do not mean simply the obfuscation that characterised as well as dominated the beginning of his speech ; I mean some of the techniques that the right hon. Gentleman has used to defend what he proposes to do. We have seen two examples in his speech today.
One of the bad habits that I hope he will get out of before Committee is defending clauses by adding to them in his speeches words that they do not contain. He asked in his more reasonable manner who would want to complain of the limitation on the publication of information which prejudices the capabilities of the armed forces to defend us? That is not what the Bill says. There is no concept of defence in the clause. Information prejudicing the prospects of the work of the armed forces being carried out successfully are all covered by the Bill, for example, when the armed forces are helping at the Smith lawn polo field, or officiating in some way at the Royal tournament at Earl's Court. The idea that that is a harm test is fatuous and the fact that the Home Secretary wheels in such wholly bogus arguments shows that he doubts his own proposals.
The second bogus argument was the one about the obfuscator, whom the Home Secretary said had been misinforming the public about telephone intercepts. The Home Secretary is quite right. If I go into Whitehall this evening and say that I suspect that my telephone is being tapped, I shall not be prosecuted. It should not be thought terribly generous that the Home Secretary allows me to make such an allegation without being sent to prison. If on the other hand--this is the charge that was made against him, not the one that he invented--I go into Whitehall and say that I know that my telephone is being tapped because I was told so by the man who tapped it, I am automatically guilty of an offence. If the Home Secretary believes that that is an extension of liberty and a liberalising measure, we can understand some of the mistakes that he has made in the Bill. One mistake and one of the Home Secretary's extraordinary habits when defending his proposals is that he uses the most extravagant language to describe what he proposes. I have no idea why he has chosen to use that language, but I think that we can be certain of one thing--that the terms that the right hon. Gentleman has used have, in almost all particulars, been misleading. He has variously described the Bill as "an essay in openness," as
"a substantial and unprecedented thrust in the direction of greater openness",
as "a charter for liberty" and as "an earthquake in Whitehall".