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Mr. Hurd rose--Mr. Hattersley : I shall certainly give way to the Home Secretary in the hope that we may have another bit of flamboyant nonsense from him.
Mr. Hurd : In the interests of historical accuracy, perhaps I should say that one of the phrases that the right hon. Gentleman used--that about "a charter for liberty"--was used, I think, in a speech made to the Royal Television Society. I said that it was a charter for liberty in comparison with the Labour Government's 1978 proposals.
Mr. Hattersley : I shall withdraw, and say that there are mitigating circumstances because the right hon. Gentleman was making a speech to the Royal Television Society--why that should be mitigation I am not quite sure --and because of the other qualification that the right hon. Gentleman put on the description, but there are still the other three descriptions to which the right hon. Gentleman pleads guilty. All are clearly and absolutely misleading. If that flamboyant language has any meaning at all, it is a description of a Bill which is designed positively to increase the amount of official information that is available to the public. This Bill does not have that purpose and, if it is passed into law, it will not have that effect.
In his calmer moments--we had a few of them today--the Home Secretary has made it clear that he has no wish to introduce or intention of introducing a Bill which would be appropriate to the description that I have just quoted. He said
"This is not a freedom of information White Paper and we do not propose to introduce a freedom of information Bill."--[ Official Report, 22 July 1988 ; Vol. 137, c. 1419.]
He said it again today. Only the Bill which the Home Secretary explicitly rejected would justify the language which he has used to describe the very different Bill which we are debating today. A Bill which justifies the title, "essay in openness" or, "earthquake in Whitehall" would set out positively to promote the free availability of all official information which could be published without damage to the national interest. That Bill would stipulate in positive language the public's right of access to official information. It would enshrine the right to know in law, making that right the presumption on which publication of information depended. It would then, inevitably and necessarily, stipulate categories of information which might, after due process, be taken as exceptions to the general rule of publication and the way in which information which must be kept secret could be kept secret.
This Bill works from the opposite end of the equation. It is concerned solely with secrecy. It does not increase the amount of information available to the public by one iota, and nor does it purport to do so. It must be examined not on the basis of the Home Secretary's extravagant language outside the House, but on the basis of the real principles on which it is constructed. The Bill is not intended to facilitate a free flow of official information--it is intended to provide a new method by which the availability of information can be reduced and obstructed. It is also intended--I think that this accounts, in part at least, for the Home Secretary's strange and inappropriate language
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--to help the Home Secretary sound liberal to one audience but appear authoritarian when he finds that convenient.Without a freedom of information Bill, the cocoon of unnecessary and debilitating secrecy by which Whitehall is surrounded will continue to deny the British people information about the actions of Government which is freely available in other democracies. That is the background against which the Bill must be debated. The best that we can say about it--at least about its purpose--is that it has the object of replacing the discredited and absurd section 2 of the present Act with something more reasonable and less risible. Even then, it fails to make the improvements that are possible within the limited terms of that aspiration. Section 2 of the present Act is so indefensible that it seems almost impossible that the Government could not find something substantially better to put in its place. In some particulars, however, the effects of this Bill will be substantially worse, not least because section 2, being so discredited, has lost much of its force. It is being replaced by a Bill which will more easily give effect to the Government's authoritarian instincts.
In his description of the Bill today, the Home Secretary made much of two points : first, official information--which will no longer be covered by official secrets legislation--and, secondly, the employment of the courts to make judgments about what is and is not publishable within the terms of the new prohibition. In both cases, the right hon. Gentleman exaggerated the changes proposed by the Bill to such an extent that we can assume only that the exaggerations were intentional.
Some material covered by the Official Secrets Act 1911 will not be included in the Bill and, therefore, will not be covered. That is hardly surprising as the present Act covers every item of information, no matter how trivial, unimportant or small it is. Saying that everything is no longer covered is not the same as doing what the Home Secretary implies he is doing, which is encouraging the publication of information which it is not necessary to keep secret. Democracy requires the publication of more information, and the Home Secretary is not making even a gesture in the direction of that principle. Nor is it right to say that the final arbiter of what can and cannot be published will no longer be the Government alone. In some categories of information, the courts will be required to make judgments about intention and damage, but, as I hope to show, the Government will still possess arbitrary powers over far too large an area of official information, and even when the courts are required to judge the effect of disclosure, the nature of the judgments that they are required by the Bill to make will make conviction certain when conviction is not reasonable.
If the Bill becomes law, the Government will still possess far too much power over the crucial decision about what should and should not be secret. In too many clauses, the Bill makes the Government, and the Government alone, the arbiter of the national interest. It is inevitable that, when the Government possess powers that enable them to describe and determine where the national interest lies, they do not distinguish between the true national interest and the sectional interests that they represent. That is why Clive Ponting was prosecuted for telling the truth. His real crime was correcting the deception that had been perpetrated by the Government.
It goes without saying that there is agreement on both sides of the House that official information which, were it
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to become public, would damage the security of the state must remain secret. I believe that there is also agreement that that principle requires sanctions to deter publication of material which would benefit enemies and potential enemies. It also requires penalties to be imposed upon those who are guilty of doing the damage which publication brings about, but I believe that there are three essential questions which divide us. I was about to say "divide the House" but I think that, as the Committee stage goes on, it will become clear that the divisions are not on the traditional and hackneyed lines that we have come to expect in this place. I believe that the three questions are these : how are we to define the categories of information which, were they made public, would so damage the state that their publication must be an offence, who should be the arbiter of whether information comes into that category, and what procedures shall be followed to prosecute and convict those who are suspected of publishing information which it is necessary to keep secret?For many of us, the essential requirement that links each of the answers to those questions is that there should be a test of damage to the national interest which is not applied by the Government alone. If we examine the Bill in detail, we see how comprehensively the Government fail to meet that need.
First, there are those categories in which the Government alone are the arbiter of what may be published. Clause 1 is comprehensive and arbitrary. Disclosure about their work by members of the security and intelligence services, and similar disclosures by those designated as being associated with those services, is an automatic offence. In this area, there is no need to demonstrate damage to the national interest. The fact of disclosure is the evidence on which conviction is made certain, no matter how trivial or inconsequential the information received may be. It cannot be necessary or right to make every item connected with security, no matter how loosely, subject to automatic restriction. It is intolerable that the Government alone should be able to define and designate the individuals who are covered by the blanket ban, and the categories of work which are to be shrouded in secrecy.
There was much justifiable complaint at the idea that the Government should certificate individual items of information as being damaging breaches of a secrets Act. Clause 1 allows the Government to designate activities, categories of individuals and swathes of information that oblige people to observe complete secrecy about what they do and what they have discovered from their jobs, even if that discovery involves fraud or felony. In those cases, the court makes no judgment about harm--revelation in itself is an offence.
Mr. Tony Baldry (Banbury) : How does the right hon. Gentleman reconcile what he is saying now with the fact that the 1978 Labour proposals contained no defence of public interest or prior publication? However, they referred to an intention to introduce a system of binding ministerial certificates.
Mr. Hattersley : I can easily explain that. We have an improved system. The hon. Member for Banbury (Mr. Baldry) must not despair of political parties improving. If he has any doubts about that, the Home Secretary exists to prove my point. He is the last Minister to say that
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politicians have to remain immobilised in the position they adopted 10 years ago. Ten years ago the Home Secretary was the apotheosis of Heathism. He was the Heath man to end all Heath men. He was the great follower of the right hon. Member for Old Bexley and Sidcup (Mr. Heath), and worked and spoke for him throughout the country. I doubt that he often says in Cabinet today the complimentary things that he said about his right hon. Friend 10 years ago. We can all change and improve. I do not propose for one minute to pretend that we should not have gone further on official secrets 10 years ago. Of course we should have done so. Some of us thought so at the time--I shall not mention any names but we certainly existed--and I propose to continue arguing that we should go further than the Bill provides. Government spokesmen have gone out of their way to suggest that the power to prosecute and convict without demonstrating harm to the national interest is limited in the Bill to public servants. That is certainly not the case. Under clause 4(3)(a) it is an offence--which does not require the proof of damage--to publish information related to a warrant under the Interception of Communications Act 1985 or under the Security Service Bill. If my telephone is tapped in mistake for my neighbour's, I would commit an offence by making public that fact and any newspaper that published the story would also have broken the criminal law.If the Security Service broke into my house in mistake for my neighbour's house and injured my family or damaged my property, it would be a criminal offence to reveal that. It is only necessary to describe the provisions relating the the Interception of Communications Act and the Security Service Bill to realise that they are wholly unacceptable. The Security Service and its activities, as designated by the Minister and as covered by this legislation and the Security Service Bill, are shrouded in complete secrecy. That is unhealthy for the public and for the service itself.
In the recent past, particularly since the publication of the Bill, the Government have gone out of their way to suggest that they have relaxed some of its provisions, especially as they affect journalists as distinct from public servants. An examination of the liberalisation claim shows how slight it is and how careful the Government have been to obtain powers to enable them to take action against journalists if and when they choose to do so.
We have been blandly told, time after time--the Home Secretary did it again today--that on almost every occasion the prosecution of a journalist as distinct from the prosecution of an intelligence officer would succeed only if there was proof that harm had been done. That is not true. An editor who publishes the diaries or biography of a retired intelligence officer could be prosecuted as an accessory to the offence committed by the officer. The offence is not limited by the need to demonstrate harm. An editor who discussed publication with the author of intelligence service memoirs would be guilty of collusion, even before they were published. Does anyone doubt that the Government, who so obsessively pursued Peter Wright at the taxpayers' expense and who attempted to gag The Guardian and the Sunday Times, would not choose to proceed against an editor under the accessory provisions and prevent him from arguing that no harm had been done
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by his actions? There are other areas where, although in theory the test of harm is necessary, in practice convictions will almost always be automatic.The obvious example is information supplied in confidence by other Governments. Such information is protected by two subsections. Clause 3(2) specifies comparatively objective tests against which the damage caused by disclosure must be measured. The most definite and--I concede at once--the most justifiable is the test that disclosure would endanger the safety of British citizens abroad. But clause 3(3) allows for conviction if disclosure is likely to have any of the effects stipulated in the previous clause. The word "likely" injects a terrifyingly objective analysis into the entire legal process. Worse is to follow. Clause 3(3) allows conviction on the basis that damage might have been caused simply by the disclosure of the information, whether or not the information itself was damaging. It will be possible to argue that the publication of a confidential story so unnerves our allies that it is a breach of the Bill. It will unnerve our allies because any breach makes them uncertain about the competence of our security services.
As I said to the House last week, that was the case made to me by the Foreign Secretary about Zircon. When I suggested that the Soviet Union probably knew as much about Zircon as did the editor of the New Statesman, he said that the revelation of the facts was not as damaging as the discovery by our allies abroad that we allowed such facts to be revealed. If that is the criterion on which the Government operate, this clause does not require actual harm of any sort. It simply requires the Government to say that, in their judgment, harm was likely. Does the Home Secretary believe that the defence "has not done harm", when the Government are saying that the very fact of publication will cause harm, would succeed? If he believes that, he will believe anything. I am sure that he does not hold that view.
In some categories, a demonstration of harm is necessary, but even there the harm is defined in such a way as to diminish the protection that the qualification is claimed to provide. The Home Office press release--another example of the Home Secretary's recently acquired and deplorable technique- -promised that the Bill would require juries to make
"specific tests of harm to the public interest".
That is simply not true. Unfortunately, neither the concept of public interest nor the words "public interest" appear anywhere in the Bill.
Different tests of justification are applied to different categories of information. Information about crime must not be revealed if the revelation results in the commission of an offence, or is likely to do so. Information relating to the offence must not be revealed if revelation prejudices the capabilities of the armed forces, in part or in whole, or is likely to do so. The words "likely to do so" add an area of unacceptable subjectivity to the process. More importantly, each of the tests against which the damage is judged is much less specific and, in terms of making a real assessment of the national interest, far weaker than should be tolerated by the House.
In its submission to the Government on the criterion
"jeopardises the interests of the United Kingdom abroad", the BBC observed wryly that "jeopardy" is not a
"useful guide to journalists or juries."
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I am sure that that is true, but the concept of jeopardy is a useful catch-all for Governments interested more in conviction than in objective analysis of possible harm.In 1972, the Franks committee proposed a much more rigorous definition of the harm test : that disclosure would result in "serious injury to the interests of the nation."
Mr. Hurd : And ministerial certificates.
Mr. Hattersley : If the Home Secretary wishes to tell me now why those two things must go together and why we cannot reject one and accept the other, I shall give way to him immediately.
Mr. Hurd : Under the Franks arrangements, the Minister will decide in his certificate whether the test has been met. For the past five minutes the right hon. Gentleman has neglected the existence of the jury members, who are crucial people in the process.
Mr. Hattersley : On the contrary, for the past five minutes I have been drawing the attention of the House to something that the Home Secretary neglected to mention--the criteria on which a jury is asked to make a judgment. I contend that the criteria are inadequate and damaging. I asked why the Franks criteria could not be used instead of the fatuous--or perhaps I should say vacuous--criteria laid down by the Home Secretary. He might think that he has explained why he rejected the more rigorous, tight and precise concept of serious injury to the interest of the nation, but I assure him that the faces behind him do not suggest that his hon. Friends are convinced by what he purported to call an answer.
The Franks definition is that which successive Governments have regarded as suitable for classification of information as secret. The Franks report recommended that information classified below that level, and therefore not appropriate for that test, should not be covered by official secrets legislation or criminal sanction. We support that wise judgment. Under the Bill, anything remotely related to security, no matter how trivial, will be covered.
"Confidential"--which anyone who has been in Government knows means nothing at all--"Restricted"--which anyone who has been in Government knows means very little--"Secret" and "Top Secret" are all lumped together. In the categories where a test of harm applies, the definition of "harm" is so wide and so weak that it is difficult to imagine any revelation, which is followed by a prosecution, not resulting in conviction. Eight years ago the Bill that the Government abandoned included a far better test of harm--the notion of serious injury. We have heard no justification for going back on that more rigorous definition ; the only possible explanation is the Government's desire to construct a Bill that will convict more easily than was thought necessary in 1979.
The Bill is and will remain authoritarian until a public interest defence is included within its provisions. During the White Paper debate I suggested that the Bill, far from being a liberalising measure, would have secured the conviction of, for example, Mr. Clive Ponting, who was acquitted on what amounted to a public interest defence. I vividly remember the cheers with which that contention was greeted by Conservative Members.
The Home Secretary has done much to confuse both the House and the country about the application of a public interest criterion, sometimes arguing that such a
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defence is possible under the Bill by equating it with the harm test--that is quite wrong--and sometimes insisting that acquittal on such a defence would be perverse, even under the present Act. Indeed, he made that point today. I shall remind the right hon. Gentleman of what happened in the Clive Ponting case. The jury concluded that it was in the public interest that the truth should be told. Although, under the Bill, that jury might still decide that the balance of interest supported publication, the terms of the Bill would make it impossible for Mr. Ponting to be acquitted in the way that he was acquitted four years ago. There is no doubt that what Mr. Ponting revealed would, in the words of the Bill,"prejudice the capability of the armed forces of the Crown to carry out their tasks."
That having been demonstrated, nothing else would matter. Mr. Ponting would be found guilty.
Mr. Dalyell : According to Mr. Ponting today--and I understand from legal authorities that this is likely--Mr. Bruce Laughlan could not have called for testimony from my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees), nor from the Master of Caius, the Rouse-Ball Professor of Law, Professor Wade.
Mr. Hattersley : I propose to develop exactly that point, but without those examples, in a moment. Before doing so, I wish to ask a general question. Is impairing the work of the armed forces really a proper criterion by which a criminal offence is to be measured--a criminal offence that is an automatic offence convictable in all circumstances? No other western democracy would make it so. If that were, in itself, enough to convict, we would be arguing, like some South American dictatorship, that the work of the armed forces was an object in itself that must be protected from all outside interests in all circumstances. We believe that when such matters are judged, we should decide whether, on balance, the outcome was good or bad for the public interest.
In the Ponting case it was decided that impairing in one particular the work of the armed forces was in the public interest. Any official secrets legislation that does not include at least that possibility is intolerable. Let us consider the possibilities. Public servants who discover a crime or a misdemeanour within their service, and find the internal method of complaint and appeal provides no redress, will be prevented from exposing that wrongdoing. That public servant will be sure that, whether or not the perpetrator of the wrongdoing is prosecuted and convicted, exposing the crime or the misdemeanour will, of itself, lead to certain prosecution and inevitable conviction. Under the present law--absurd and inadequate though it is--a public interest defence is possible. A defendant can argue in litigation that he or she made the classified information available only to those--and I quote from the Act--
"to whom it is, in the interest of the state, his duty to communicate it."
That becomes a public interest defence, as it was in the case of Clive Ponting. He argued that, numbered among the people for whom it was in the interests of the state for him to communicate previously suppressed facts about the Ministry of Defence, were the people of Great Britain. The jury representing the people of Great Britain agreed with him.
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Mr. Ray Whitney (Wycombe) : On the question of a public interest defence, the right hon. Gentleman will recall that the Cabinet of which he was a member authorised the production of the Cheveline as the upgrading for the Polaris nuclear weapon. That information was kept from other members of the Cabinet, from hon. Members and from the public. Had some of those civil servants--who must have been aware of that--leaked that information in the public interest, would the right hon. Gentleman have approved of their action?
Mr. Hattersley : Of course I would not have approved, and I believe that a jury would have convicted them of behaving in a manner against the national interest. However, if the hon. Gentleman wants to know whether I would be prepared to allow that to be tested, the answer is that, of course, I would. The hon. Gentleman misunderstands the entire case of those who believe in openness. We are prepared to test our judgment against the judgment of an English court. What divides the authoritarians and the libertarians is the view, which the hon. Gentleman clearly holds, that if the Government say it, it must be right and it must be true. I do not accept that principle. If it is any consolation to the hon. Gentleman, I do not believe in it any more for a Labour Government than I do for a Conservative Government. We need to be protected against Governments of all sorts and of all persuasions.
Mr. John Maples (Lewisham, West) : In reply to my hon. Friend the Member for Banbury (Mr. Baldry), who asked why a public interest defence was not included in the Labour Government's proposals in 1978, the right hon. Gentleman said that his Government had changed their mind. I hope that he will forgive us for wondering why it is such a fundamental principle of liberty now when it was not such 10 years ago.
Mr. Hattersley : It is important to consider the Bill and the alternative proposals on their merits. I shall argue for the merits of the sort of freedom of information legislation that I want. I believe that to be right now as I believed it to be right in 1978. I do not want to be over sententious, but I hope that when we try--as I hope that we will--to discuss the merits of the alternative systems, the hon. Gentleman will appreciate that the argument about motivation 10 years ago is pretty small beer and trivial.
I shall put the point about a public interest defence in a way that will explain and justify it to the hon. Member for Wycombe (Mr. Whitney). Let us assume that a Labour Government are in power and that they tap the telephones and break into the houses of hon. Members who have close but wholly legal connections with South Africa. Let us further assume that an intelligence officer reports that abuse to The Times and The Daily Telegraph. He has explained that he made a complaint within the official machinery, but the abuse continued. When that unlawful interception and burglary are reported, would the hon. Gentleman really want the intelligence officer who exposed the scandal and the newspapers that reported it to be automatically and inevitably convicted of a criminal offence? Or would they wish, as I wish, that those who expose wrongdoing to be given the right to argue the defence that they did what they did in the public interest? Under this Bill, such a defence would be impossible, for part of the intention of the Bill is to withhold information not from the enemies of society but from the members of
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society. If I had doubted it for a moment, one of the more extraordinary points that were made by the Home Secretary almost an hour ago would have convinced me of that conviction.The Home Secretary told us that damage may be done if a previously secret story were published on the front page of a newspaper, even though the secrecy had previously been breached on the inside pages of a technical journal. That contention can be justified in two ways. The first is that intelligence agents of foreign powers do not read technical journals. The second is that we wish to keep information not from foreign powers but from the British public. It is that which is most offensive about the Bill.
Mr. Hurd indicated dissent .
Mr. Hattersley : Although the Home Secretary shakes his head now, there is no possible explanation of the extraordinary point that he made in the exact terms that I described.
Let us pursue the matter a little further and examine clause 6(3). No offence is committed if confidential information in this country is published when that information has already been published lawfully in another country. Why is it an offence to repeat information that has been published unlawfully in another country? I make the same point. It is reasonable to conclude that Russian agents examine the Washington Post , Le Monde and La Stampa . They will not confine their interest simply to matters that have been published with the authority of the American, French and Italian Governments. If a secret is published in an allied country, it is not unreasonable to assume that it is known in Moscow and Peking. Prohibiting its republication in London can have only one intention--that it should be kept not from the enemies of Great Britain but from the people of Great Britain.
The history of official secrets legislation, as manipulated by the Government, is concerned with the convenience of Government as much as it is concerned with the security of the realm. The Wright fiasco was prolonged and pursued to avoid the Government in general and the Prime Minister in particular losing face. Clive Ponting was prosecuted because he told the truth and, in consequence, exposed official lies. This Bill, if it is passed into law, will confirm the Government's power to perpetrate all those excesses.
It is a bad Bill. Its application is likely to be worse because, during its early years, the Government will manage and manipulate it. We shall vote against it tonight.
.12 pm
Mr. Edward Heath (Old Bexley and Sidcup) : I congratulate my right hon. Friend the Home Secretary on having carried out his undertaking to bring the White Paper to the House before the end of the last Session and on bringing the Bill before the House at the beginning of the present Session. He faced a formidable task ; nobody recognises that better than I do. The Government over which I presided set up the Franks committee, and, in 1973, we accepted all its recommendations. My right hon. Friend's predecessor, Mr. Robert Carr--now Lord Carr--made that statement in the House. We were not in power long enough to implement the committee's recommendations in the next Session. The Franks committee urged that the House should pass an official information Act. It shows the difference of approach that the emphasis was on
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an "official information" Act. That is one of the causes of anxiety among many hon. Members and the press about the real attitude behind the Bill.My right hon. Friend has considered many of the points that were raised. This debate can only be an introduction to consideration in Committee. I appreciate that. Mr. Speaker has asked hon. Members to make brief contributions. I should like to make a brief contribution, but many points in the Bill need to be discussed in detail. Therefore, my right hon. Friend and the Whip will urge the Leader of the House to allow proper time for discussion in Committee.
One cannot rush the passage of a Bill of this kind. The implications are far too great. There is the implication for the safety of the realm. That is of great importance, but of equal importance is the right of the individual citizen, and certainly of the House, to the utmost information available, compatible with the safety of the realm. That requires striking a balance, but, in my experience over many years, all too often Governments are likely to put the balance on the side of Government keeping information secret rather than giving information to the citizen and the House of Commons.
I can recall, in my time in politics, at least three major foreign policy matters, for example, when information should most certainly have been made available to the House of Commons and to the public, but it was not. I have no desire to see those instances repeated. I also have in mind the case of Sir Con O'Neill, who resigned over Suez, and did so quietly. He just wished to leave the Civil Service. He should not have left it at that. I quite agreed with the Chief Whip at the time--I said nothing. As a senior civil servant who knew the whole story, he had a responsibility to give the real and full reasons why he resigned. Under this Bill, he could not do so. There are several similar instances at major points in our history when it became necessary for a civil servant to do that. It is now said that he can go through the channels of the Civil Service.
Again, in my experience, the attitudes of heads of the Civil Service vary. Sir William Armstrong was strongly in favour of an open Civil Service and always gave permission for civil servants to appear on the BBC or ITN to give their views. Other heads of the Civil Service have not taken that view. If the head of the Civil Service says, "You have your complaint, you have expressed it to me, but that is the end of the matter," should it be the end of the matter? It is a matter of ethics and professional service, which must be taken into account in a Bill of this kind.
The Official Secrets Act 1911 has been open to a great deal of criticism. However, it has continued because, on the whole, it has been dormant. It has been used by Governments only in cases of obvious espionage. For sound reasons, cases were often heard in private. Nobody doubted that the court had dealt with a case of deliberate, organised espionage. The Ponting case was dismissed. In another case, the girl, not the Government who brought the case, got the sympathy of the public. That is why the Official Secrets Act has continued in its present form. It was used only in the most extreme cases.
The question is whether the Bill will continue in that tradition. The cause of anxiety is the belief that it will not. I ask my right hon. Friend not to get upset about it. Any Government who pursue the Wright case to the ultimate ends of the world, as this Government did, are bound to face suspicion about the degree to which they will use the
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great powers that they have in the Bill. The Wright case was pursued to the ultimate. My right hon. Friend must accept that, if the Government were successful in the Wright case here, the British people would not have had the right to read the book, whereas the rest of the world would have. Surely that is not tolerable. After a press conference in Hong Kong, I was presented by the press with a paperback copy of Mr. Wright's book. I expressed only limited gratitude to them, because, when I opened it, I saw that it was in Chinese. That did not make Mr. Wright's allegations available to me, but it made them available to 1.05 billion Chinese readers. We cannot continue that sort of thing with this Bill. That is what gives cause for such anxiety.That brings me to prior publication. My right hon. Friend spoke of technical journals. Technical journals in the United States produce a mass of information about the American forces, the like of which is never seen in this country, never published and never revealed by Ministers. It is for the super-powers that it is made available. The United States, too, has its Freedom of Information Act. This legislation will close the doors on anything of that kind. It is not justifiable that, if information appears in an American technical journal, the British are the only people not to be allowed to know about it. The Russians, Chinese and Americans can know. All our allies know. The only people who cannot know are the British people. That cannot be allowed to continue. That is why I emphasise to my right hon. Friend the need for time in Committee to discuss this in detail, and to give him the chance to examine some criticisms. Our objective should be to produce a Bill acceptable to both sides of the House and, as far as possible, to the press. The latter will be more difficult. When we discussed the Franks report I invited all the editors of the British papers to come to No. 10 and give me their views about it. They had only one view : ignore it, and sweep away the Official Secrets Act. That is not possible. The degree of support from the British press will always by limited, but what is said in the House should be taken into account.
I cannot see any way of dealing with these problems other than by having a public interest. I recognise my right hon. Friend's emphasis on the jury, but if public interest is to be taken into account, fewer cases are likely to be brought under the Act. Why should one open the whole arena to cases being brought when one expects that juries will dismiss them?
Mr. Nicholas Budgen (Wolverhampton, South-West) : Does my right hon. Friend agree that it is difficult for any judge to prevent a jury hearing arguments which will amount to a public interest argument? [ Hon. Members :-- "Quite right."] My hon. Friends properly say, "Quite right." But when a case is being argued before a jury, it is necessarily argued much more widely than before a judge sitting alone.
Mr. Heath : The terms of the legislation must be taken into account. If it is clear in the Bill that public interest must be taken into account, it clarifies the whole position, as it should do.
There are many confusions in the Bill and I resist the temptation to call my right hon. Friend the Secretary of State for obfuscation. He has hidden some parts, and when we reach Committee stage these must be produced. For example, what happens if, as may happen under a future
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Government, our defence forces are in a particular way inadequate? If such public knowledge is produced, one may say that it is damaging to the country. This takes us back to the famous Duncan Sandys case before the second world war. He was absolutely right and was finally shown to be right. If we rely on the terms of the Bill, that would not happen. It would be said that, by revealing our weakness, he has done immense harm to the good of the country. That would hold good under this Bill.Again, if there are better reasons than I have found for this, we can discuss them in Committee. That emphasises the need for a thorough discussion in Committee.
Mr. Dalyell : Is it not also true that Major Sir Desmond Morton, who advised Churchill and told him about air weaknesses, would certainly be in prison under this Bill?
Mr. Heath : There may be other cases and it is open to my right hon. Friend the Secretary of State to explain them all later. We can argue about the past, what we were about to do in 1972 and what a Labour Government did or did not do in 1978. In the past 20 years we have seen a complete transformation of information in the world. It is due entirely to technology, satellites and everything which goes with them. Whatever happens at any moment we hear a second later on the radio and see on the first news broadcast on television. That has transformed the whole approach to public information, which includes the secrecy of essential services. It means that the public not only expect more information, but are led to expect it by the media and are entitled to it. It may be said that I have changed since 1972-73. Yes, I recognise that what goes on in the world is of prime importance to citizens and Parliaments. That is being recognised elsewhere, but we have been slow to recognise it. If the Bill is passed, will Irangate be possible? The answer is no. For 30 years, nothing would come out. Yet Irangate exposed the incompetence and hypocrisy of the President of the United States. Real damage was done to the United States because the matter was seen worldwide. I shall not attempt to describe the actions of his subordinates, but they were all publicly discussed because the basic information was made available in the first instance which led to the Congressional hearing in which everything was brought out. That is a test of this Bill. Could such an example happen in this country under the Bill? I do not believe that it could.
Mr. Buchan : Does the right hon. Gentleman agree that America was a great deal healthier as a result?
Mr. Heath : I agree with that. I know that opinions vary. I know from an answer that she gave at Question Time that my right hon. Friend the Prime Minister thinks that it was not right that everything should have come out. There is a difference of view ; I accept that. There is not a difference of view in the United States, which expects information to be made available for people to make their judgments, although other powers may draw their deductions from what was revealed. When we have a Bill in which that is possible--we have information and can form our judgments about it--it will be a satisfactory Bill
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for information. The other side of the coin is that we must ensure that vital questions of security can be protected, as they are under the Official Secrets Act.I thank my right hon. Friend for introducing the Bill. In the past, he has listened to criticisms. I hope that he will pay attention to what is said in this House and outside, and that in Committee we can have longer, more detailed discussions of important matters which remain.
5.27 pm
Mr. Peter Archer (Warley, West) : The right hon. Member for Old Bexley and Sidcup (Mr. Heath) must have given the Home Secretary the clue to why the dancing in the streets at the introduction of this Bill was somewhat restrained. We are discussing the circumstances in which we prosecute people for revealing information. Any question of an obligation on the Government to make information available is not even part of the debate, because it is not part of the Home Secretary's proposals.
In my usual conciliatory way I should like at least to start by advancing some propositions which may meet with the approval of the whole House. Since it is Christmas, I suggest a party game. Who said :
"Publicity is the most effective check against any arbitrary action."?-- [ Official Report, 5 February 1960 ; Vol. 616, c. 1351.] Was it John Milton, Duncan Campbell, Esther Rantzen, Clive Ponting or Peter Wright? The answer is that it was not any of them. It was said originally by Franks, but it was quoted with approval by an honourable Member of this House on 5 February 1972 when introducing a private Member's Bill. She was then simply the hon. Member for Finchley (Mrs. Thatcher).
Mr. Buchan : I think I would have guessed the right answer.
Mr. Archer : I think that some of my hon. Friends might have guessed. Admittedly, that hon. Lady was dealing with local councils and she was no more enamoured of them then than now, but I suspect that she might have said the same about the state, because at that time, like Louis XIV, she had not become the state.
Mr. Jonathan Sayeed (Bristol, East) : The right hon. and learned Gentleman said 1972, but I think he means 1960.
Mr. Archer : I meant 1960. I am grateful to the hon. Gentleman for correcting me. The lady in question was then the hon. Member for Finchley, not the right hon. Lady.
I never expected to hear myself say, "I agree with the right hon. Lady." Honesty compels me to declare, however, that in this instance I do agree with her, even though she no longer agrees with herself. Perhaps there are propositions that will gain general acceptance in the House. For example, information is the key to high standards in public administration ; there is no more effective inducement to high standards than the knowledge that achievements and failures will become known ; information is the key to representative democracy ; there can be a choice only for those who know what the options are ; the electorate can pass judgments on Governments only if it knows what Governments are doing. I would think that those propositions would be met with general agreement.
Equally, I think that there is general agreement that there must be some restrictions on the right of the public
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to have information. For example, there are the interests of security, crime prevention and other matters that are set out in the Bill, as well as subjects which do not relate to the Bill. There is the right of individuals to a deserved reputation. There are matters of copyright and of obscenity. The European convention on human rights lists some of the instances where restrictions are necesary in the interests of a democratic society. I fear, however, that those are not the only considerations that induce administrations to attempt to conceal information.We cannot gauge the state of public information in the United Kingdom by reading section 2 of the Official Secrets Act 1911 or even the statute book as a whole. One would expect the Prime Minister's assertion to gain general acceptance in a country where, until this century, those who were persecuted in their own countries came to settle and to find refuge, because it was within the United Kingdom that they were free to say and to write what they chose. Yet to discover the hygiene conditions within meat factories, it was necessary for the investigator to go to the United States, to which the factories exported, to invoke the Freedom of Information Act in that country and to read the reports which inspectors in the United States had prepared on the British meat factories. This is a country where only a series of private Members' Bills over the past two or three years have brought us to a position which is somewhere near that which prevails in other countries, not one that is in advance of them.
As I have said, we cannot gauge the state of information in this country by reading the only legislation in the statute book. Perhaps we suffer from the fact that British bureaucracy is one of the oldest and most established bureaucracies in the world. Its culture is one of the most deeply entrenched, with all the advantages and disadvantages which that entails. One of the disadvantages is the collegiate sense of identity and of superiority which comes from sharing secrets. It is the binding mechanism of a priesthood or of a freemasonry. It is the source of that sense of loyalty to the machine which extends beyond loyalty to the community, which has elevated the ability to keep secrets to the greatest of all virtues.
The evidence given to the Franks committee included a quotation from a permanent secretary to the Treasury of 1873, which read : "The unauthorised use of official information is the worst fault that a civil servant can commit. It is on the same footing as cowardice by a soldier."
It is against that background that we debate the Bill. Section 2 of the 1911 Act has stood for years as a symbol of excessive, all-embracing secrecy for the sake of secrecy. It sprang from the paranoia of 1911, and it has subsequently been protected by the mentality that is portrayed so perceptively in "Yes, Prime Minister".
Opposition Members should welcome the final dispatch of section 2. We should commend the Government for taking such action. We have few enough opportunities to commend the Government, and we must not be ungenerous when they occur. But if we are to disturb the sleeping dog to which my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) and the right hon. Member for Old Bexley and Sidcup referred--the sleeping dog that does not wake very often, and only in a restricted way--we are surely entitled to examine what the Home Secretary proposes to put in its place. If the Bill, when enacted, remains on the statute book for as long as its predecessor, it had better be an improvement. The
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