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Home Secretary must not be surprised that the Bill has been hailed as a substitute for a freedom of information Act.It is in the interests of time that I shall concern myself only with the absence from the Bill of a public interest defence, on the lines of that included in the Bill presented by the hon. Member for Aldridge-Brownhills (Mr. Shepherd). The Home Secretary does not provide a substitute for that defence when he introduces the damaging disclosure test. As my right hon. Friend the Member for Sparkbrook said--this was taken up by the right hon. Member for Old Bexley and Sidcup--the prosecution is entitled to succeed on the damaging disclosure test if it can show any damage that follows from the disclosure. The public interest test introduces a balancing of the advantages and disadvantages that flow from the disclosure. I am bound to ask what our reaction should be when a normally loyal and discreet official says that the arguments of security and confidentiality are being used, or abused, to conceal something that should be challenged, something about which the public should know and something on which they are entitled to pass judgment. What is the position if the official says, "My conscience tells me that I can no longer be party to the deception"? If any Conservative Member tells us that he can envisage no circumstances in which he would feel that dilemma, he would be more at home in some Orwellian nightmare than in a free society.
How far should a political community recognise the dilemma? I do not seek to argue that we can afford absolute licence for the individual conscience. I accept that, if any of us were permitted to do whatever our consciences dictated, it would be impossible for us all to remain on one planet. That is not what we are being asked to consider. I imagine that it will be said that decisions of the sort that I have postulated should cost something. As Nye Bevan once said, one cannot be a martyr without being prepared to wear a martyr's crown.
But understanding and tolerance are political virtues. A healthy political community should be able to accommodate a genuine dilemma in which even a decent and loyal individual--indeed, especially a decent and loyal individual--may find himself. I make a suggestion, in the hope that as a result we may find some common ground. I have no authority to speak on behalf of any of my right hon. and hon. Friends, and I do not know whether they will agree with me--I make it clear that I am not trying to draft a provision--but could we not say that a jury should be empowered to acquit if it found the following three factors : first, that the accused was motivated by a genuine conscientious conviction ; secondly, that he tried so far as possible to rectify the position within the system ; thirdly, that on balance the public interest was better served by disclosure than by silent acquiesence?
Mr. Greg Knight (Derby, North) : Will the right hon. and learned Gentleman tell us in what other area of criminal law motive is a defence?
Mr. Archer : I could list at least 20 offences where motive is a defence. Motive is one of the matters frequently considered by the courts in the context of intention. Juries have no difficulty in considering it. The philosophy underlying our criminal law is that there should be no guilt
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without a guilty mind. I am prepared to argue about this in Committee with the hon. Gentleman. It is not a novel concept. I should have thought the hon. Gentleman would go along with me in erecting two hurdles--one subjective and the other objective. I can well imagine that some of my friends in the NCCL might not thank me for doing that. They might say that it places the individual conscience in mercy to popular opinion. I have no doubt that some Conservative Members will say it is the thin edge of an anarchist wedge, but I should have thought that the hon. Member for Derby, North (Mr. Knight) and the Minister would have agreed that this was an attempt to find some middle ground.It may be said that such a matter should not be left to a jury ; as I understood it, the Secretary of State said something like that. That surprises me, because every day of the week juries decide on concepts that are broadly of this type. As the right hon. Member for Old Bexley and Sidcup pointed out, juries have been deciding matters similar to this in the context of section 2. On the whole, juries have a better record of recognising the occasional conflict between liberty and order than politicians.
This is not the only problem raised by the Bill, but time, as always in this Chamber, imposes its own restrictions on free speech--
Mr. Kenneth Hind (Lancashire, West) : Does the right hon. and learned Gentleman agree that one major problem with the public interest defence is that a defendant can agree that he has caused positive harm to the national interest, but claim that he has done so in the public interest? He may argue that the harm he has done should be considered in the light of the good that he has achieved. However, if positive harm is done to the public interest, the public interest is not being served.
Mr. Archer : The difference between the two tests is that, with the public interest test, it is possible to balance whether, on the whole, the public has benefited from a disclosure. The positive harm test does not permit a jury to take that into account
Mr. Ivan Lawrence (Burton) rose
Mr. Archer : I am sure the hon. and learned Gentleman will make his own speech later.
We all know of cases in which juries have been directed that they cannot take such a judgment into account. Occasionally, they break loose and do not follow the judge's direction, but it is unsatisfactory for a jury to have to disregard a judge's direction in order to effect justice
Mr. Lawrence rose
Mr. Archer : I am sure the hon. and learned Gentleman will forgive me ; I have spoken for long enough.
I urge the Minister to reflect that, if secrecy is sometimes necessary to protect our way of life, it is the cure that may well be worse than the disease--it may provide a greater threat to the way of life it is intended to protect.
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5.43 pmMr. Ray Whitney (Wycombe) : The right hon. and learned Member for Warley, West (Mr. Archer) underestimates the difficulty in his proposition about the public interest defence. Even by his second criterion--he is a lawyer, I am not--Clive Ponting would have been vulnerable to being found guilty, as he did not exercise all the options available to him through the normal channels to express his concerns.
I add my congratulations to my right hon. Friend the Home Secretary on bringing to the House a Bill for which the House and country have waited for so long. We all know how unusable and dangerous the Official Secrets Act 1911 has been, but we all are aware of the difficulties that Government's of both complexions have encountered. Finally, the nettle has been grasped. Hon. Members on both sides of the House should congratulate the Government on doing that. Of course, the Bill upsets some people--I shall avoid calling them the obfuscators : let us say, the perpetrators-- who take advantage of the sheer unusability of the 1911 Act. The prospect of having an Act that will be usable causes anxiety in some quarters, but the majority of people in the country very much welcome it.
It is important to understand the world in which we live and the sort of information that needs to be kept secret. Lip service is paid to this, and then we move quickly on to the mass of information for which the people are allegedly hungry and thirsty and without which they will not be satisfied. This hunger and thirst may exist more in the minds of politicians and journalists than among our constituents. However, let us accept that it exists and that, as my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath) pointed out, there is now a vast mass of information that was not available before. When it is enacted, this Bill will release huge amounts of information into the public domain which now exist in a grey area. But there remains a crucial area that must be protected, and I think that the Bill does that.
My interest in the public interest defence arises from my experience as a member of Her Majesty's diplomatic service. I recall with wry amusement the sanctification of Mr. Clive Ponting. He has now been enrolled as a member of the Social Democratic party. It is unfortunate that the right hon. Member for Plymouth, Devonport (Dr. Owen) is not with us today. He was Foreign Secretary when I was the head of the Foreign Office Department. On many occasions items of information became available to me which I could have done a Ponting with. I could perfectly well have put them in plain brown envelopes and sent them to people who are now my hon. Friends. It would not have occurred to me to do so. Had I done so, the right hon. Member for Devonport, who now welcomes Mr. Ponting with acclamation into his party, would have been rightly outraged and would have launched proceedings under the 1911 Act.
It is important to recognise that Mr. Ponting did not take the opportunities that he had to pursue his concerns through the channels that then existed which, as a result of this legislation, will be greatly enhanced. When challenged with disclosure, he denied it. He took every chance to conceal the origin of the documents and, in the end, passed them not to his Member of Parliament, or to a Privy Councillor, or to the Select Committee on Foreign Affairs, but to the hon. Member for Linlithgow (Mr. Dalyell),
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whose rather special--one might even say idiosyncratic--interest in the affair was well known. That was clearly a politically motivated act. So any defence of the public interest concept mounted on the basis of the Ponting story immediately shows the weakness of the proposition--Mr. Robin Corbett (Birmingham, Erdington) : I hope that the hon. Gentleman will reflect on the bitter personal attack that he has made on Mr. Ponting in circumstances in which the latter has no right of reply. The hon. Gentleman should also put the saga in context. Mr. Ponting was charged under the 1911 Act and acquitted by his peers.
Mr. Whitney : I am well aware of that, and everything that I have said about Ponting I have said in writing before. It is not subject to challenge ; it is absolute fact. He was acquitted by his peers, and that shows the inefficacy of the 1911 Act. We need a new one. That is not to say that there is not a propensity for excessive secrecy in the Civil Service. It is a challenge to all Ministers to ensure that that propensity is not pursued to dangerous lengths. That cannot be achieved by legislation on secrecy. The freedom of information legislation in the United States is greatly open to challenge as an effective means of achieving that.
Mr. Aitken : My hon. Friend has hit rather hard and successfully the Ponting long hop bowled by the Opposition on the public interest defence. However, he completely ignored and failed to play the much more devastating ball bowled by, among others, my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath) on the public interest defence as it applied in the non-prosecution of cases such as that of Mr. Duncan Sandys and the civil servants who briefed Sir Winston Churchill before the second world war about the lack of preparedness of our anti-aircraft defences. My hon. Friend ignores the fact that the public interest defence has helped the free flow of responsible information. It should not be narrowed down to the debatable case of Mr. Ponting.
Mr. Whitney : My hon. Friend takes us to a much more profitable area. However, we have to draw a line somewhere and, as my right hon. Friend the Member for Old Bexley and Sidcup says, we must look at this area in Committee. In general, the Government proposals have the right balance and the structures that are about to be put in place will take account of that. I say at the risk of appearing immodest that if a civil servant feels strongly about an issue he may as well do what I did and leave the Civil Service and enter politics. That option is open to a civil servant.
Some Opposition Members have shown wry amusement about prior publication. They take the view that if people in Moscow know about something why should we not know about it. That fails to understand the nature of the attack on free societies and how that attack has developed in recent years. Let us be clear : the attack continues. While we continue to wish Mr. Gorbachev well about the words that he expresses and hope that they will be translated into reality in terms of improving conditions in the Soviet Union and reducing the pressures of the arms race, the reality is that free societies are still under attack.
My hon. Friend the Member for Thanet, South (Mr. Aitken) quoted from a United States' statement about that the other day and a Home Office Minister also emphasised that there is no evidence at all that the attack on Western
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societies has let up in any way. We must understand the nature of that attack. One element of it is the degree of political warfare that relies precisely on the mechanism of prior publication. It is not a question of people in Moscow or anywhere else knowing something before we do and using it to, at the very least, discomfort Western societies.I shall give the House one example. A foreign magazine published in 1973 the name of the then head of the Security Service, a service which of course did not exist, and neither did the man. Not only was that man's name published in the foreign magazine, but a large photograph of him was published in the British press on the basis of prior publication. The publication of that information endangered the life of the head of the intelligence service and increased the vulnerability of servants of the Crown. The danger was not from the Russians but from a terrorist or some nutter. We all knew where the officer lived and where he dined, and the publication of such information exposes the members of the security services to risk.
Mr. Buchan : Will the hon. Gentleman tell us the name and address and describe the behaviour of the director of the CIA in America?
Mr. Aitken : That can be found on the front cover of Newsweek .
Mr. Whitney : The hon. Member for Paisley, South (Mr. Buchan) will know that the presence in this country of Mr. Philip Agee was rightly terminated by the Home Secretary in a Labour Government. Mr. Agee was expelled from Britain. His disclosures resulted in the assassination of some CIA officers. Therefore, the danger exists and it arises because of the threat of prior publication. These two areas cause concern to the House, so I hope that hon. Members will take full account of the problems of public interest and the dangers of prior publication.
Mr. Heath : Is my hon. Friend aware that the head of the CIA and the head of the FBI have both taken part in television broadcasts with me in the United States? Everybody knows their names and their faces and knows their views. We have had discussions, we were cheered by the audience and seen by millions who came to watch me.
Mr. Whitney : My right hon. Friend will not be surprised to know that I am well aware of that. I, too, have participated in similar discussions. My right hon. Friend must not have heard me when I said that it was the names of CIA officers in the field who were revealed and those officers were exposed. I know about the practice in the United States, but it was not the practice in this country in 1973 to expose the names of the heads of the security and intelligence services. A small obscure magazine published, I think, in Hull and called, would hon. Members believe, Lobster makes a practice of publishing names of gentlemen who are alleged to be members of the security services. That creates danger and I am sure that my right hon. Friend the Member for Old Bexley and Sidcup shares my deep apprehension about that sort of practice being allowed to continue. I strongly urge the House to take account of the points that I have made and to understand that as well as living in a world of information we live in a world of dangers and threats. I draw to the attention of the House a statement by the right hon. Member for Leeds, East (Mr. Healey)
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who was well known last week for playing Father Christmas in Epping and who was the Foreign Secretary in a Labour Government. He said : "I get no letters whatever about the Official Secrets Act or any of these issues. I think the level of public interest is pretty low "Mr. Corbett : Times have changed.
Mr. Whitney : The hon. Gentleman says that times have changed, but the right hon. Member for Leeds, East said that a few months ago and that remains the position.
5.57 pm
Mr. Robert Maclennan (Caithness and Sutherland) : No one in the House--or, indeed, in the country at large--doubts that the Official Secrets Act 1911 required amendment, but the circumstances in which the Government are bringing forward the Bill after nine years of deliberation are causing many observers to view its purpose and provisions with the greatest suspicion. The Bill is not brought forward in the context of careful deliberation by the Government on how best to strengthen and secure the democratic right of the citizen to receive as well as to impart information. We have extremely few laws which positively encourage information flows. Secrecy is the curse of British democracy. However, it is upon the availability of official information that a democracy depends, because it enables the citizen to participate effectively in the making and administration of laws and policy.
Although Britain has subscribed to article 10 of the European convention on human rights, which guarantees freedom of expression as a fundamental right, we cannot rely upon any specific legislation which ensures that that right is powerfully protected by the judicial system. We need legislation to provide a firm basis of principle to safeguard the conflicting interests of confidentiality, privacy and accessibility of information. The legislation should ensure that in the last resort the right to obtain information is not left to the discretion of a Minister, a civil servant or a judge, but depends upon the law as determined by Parliament, which can be enforced by the courts.
That is why the Democrats strongly advocate a freedom of information Act, not merely to limit the scope of the protection of information by the criminal law but to encourage a pluralistic and participatory democracy. That, after all, has been the approach pursued in many other countries with common law systems like our own--in Canada, Australia and the United States. In the absence of such a measure which could curb the uncontrolled discretion of the public authorities to withhold information, the public are bound to look with a jaundiced eye on a Bill which seems designed more to tighten control over certain categories of information than to advance openness of government.
It seems that the Government have finally decided to legislate primarily because of the Ponting and "Spycatcher" cases. The Ponting case demonstrated that at least a British jury was not prepared to accept that it could not decide whether publication of official information was in the public interest. The Ponting jury appeared to have followed closely the reasoning of the civil
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law of confidence which recognises that, exceptionally, the public interest can justify a disclosure, even of highly confidential information.Years after section 2 of the 1911 Act was condemned by the Franks committee, the Government have been forced to recognise that it is no longer a useful instrument to protect information. "Spycatcher", after an expensive and humiliating tour of the courts of the world, ultimately determined that the reportage of what was already in the public domain could not be injuncted. The Bill appears to have been prompted by those two judicial defeats for the Government more than by any regard for the modernisation of the law and the freeing of information.
It must be made clear that, despite what the Home Secretary has said, the Bill does nothing to increase public access to information. It does nothing to reverse the prevailing assumption that information collected on behalf of the public--by public servants and at public expense--should be kept secret. It does nothing to place on the authorities the responsibility for justifying that secrecy. Instead, it continues to charge the public with responsibility to justify access. It perpetuates an undesirable inconsistency between the criminal and civil law of confidentiality, making the obligations to maintain confidentiality more strictly enforceable by criminal penalty than they are by civil remedies, as the civil law of confidence provides that it is a defence of an action of breach that that breach was justified in the public interest.
The scope of section 2 of the 1911 Act is ludicrously wide. It was certainly time to confine tightly the ambit of the criminal law to those matters where disclosure would cause
"serious injury to the interests of the nation",
as the Franks committee put it. It is to be noted that, in abandoning the criminal law in wide areas of official information, the Government propose to tighten the sanctions of the Civil Service discipline code. The Home Secretary did not deny that point when he alluded to these procedures. Although it may be true that the Government are not seeking new powers of injuction, as the Home Secretary said, there is no sign that they wish to abandon their considerable powers to seek injunctions under the civil law to prevent unauthorised information from being published or broadcast. Furthermore, we have heard nothing from the Home Secretary today or in earlier debates about the many statutes--about 100 of them--which make it a specific offence to reveal specific types of information. There is much still to be done to rationalise the law, even within the terms used by the Home Secretary.
I do not argue that there are not certain limited classes of information on which it is appropriate to invoke the sanction of the criminal law, but I fear that by drawing too widely the categories of protected information-- those categories in which disclosure constitutes an absolute offence and those in which disclosure is an offence if it is likely to cause harm--the Government risk perpetuating uncertainty in the operation of the law. If there is obfuscation on this, it flows from the language of the Bill, which has already been subjected to considerable scrutiny by the press and those most likely to feel its impact, who undoubtedly find its provisions extremely obscure.
A further matter which has not been raised in the debate is that the Bill appears to invite the further attention of the European Court of Human Rights. The careful and persuasive arguments advanced in the unanimous report of Lord Deedes' committee, set up by
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Justice to consider the Bill, strongly show that the Bill is defective in that the limitations that it imposes on freedom of expression are not those that would be regarded as "necessary", as defined in the Handyside and Sunday Times cases. In particular, the Deedes committee argued that the requirement only of "damage"--and not of "serious damage", as the Franks committee recommended--cannot constitute such a "pressing need" as to justify criminal sanctions in respect of so fundamental a right as freedom of information. The Deedes committee further argued that it would be even more difficult to justify limiting that freedom in categories which, under the Bill, would give rise to criminal liability, even though no damage had been proved--the categories relating to security and intelligence, interception of communications pursuant to a warrant, and action authorised by warrant under the Security Service Bill 1988. I hope that the Minister, who has just returned, will answer the case made so powerfully by that unanimous report--that the Bill will offend against article 10 of the European convention on human rights. Will the hon. Gentleman answer the arguments which that report so cogently expressed?It is highly imprudent of the Government, who hitherto have tried to square their legislation with our international obligations under the European convention, to embark upon a Bill of such doubtful conformity with international law. The "Spycatcher" case brought the Government into ridicule, principally because they did not take proper account of the effect of prior publication. The Government have not tackled that problem efectively in the Bill. It appears that, where the offences are absolute under the Bill, the repetition of previously published information will be a further new offence. The position is less clear where there is a requirement that disclosure is likely to cause harm. In those cases it is apparently intended that matters should be left to the determination of the jury, but I am not entirely clear that that is so.
The provision that in certain cases any disclosure would be an offence, regardless of harm, is far too widely drawn. In particular, clause 3(3), which makes it an offence to publish a leak of any document from another country or international body regardless of the subject matter, is a patent absurdity. I do not see how the Government can begin to defend a proposal that it should be a crime to publish leaks of European Community documents which emanate from Whitehall about, say, pollution, tax reforms or information received from the Food and Agriculture Organisation on nutritional standards. I do not think that the Home Secretary answered that point by talking about the additional requirement of harm.
A further major criticism of the absolute offences is that they depart from the Franks committee's recommendation, particularly in respect of the interception of communications and security and intelligence matters, that they should be offences only if they cause
"serious injury to the interests of the nation".
The same objection may be made to those categories of disclosure where the Bill requires some test of damage. The result of the weak tests of "prejudicing" and of "putting in jeopardy" the national interest is greatly to extend the categories of protected information beyond what the Government proposed in the Protection of Official Information Bill in 1979.
Those are all matters to which the House must return in detail in Committee. I certainly support the call of the
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right hon. Member for Old Bexley and Sidcup (Mr. Heath) for a long and careful Committee stage. We are dealing with matters of national security and how best to safeguard them. This is possibily a matter of constitutional importance and it is certainly a matter of high security importance. It would be inappropriate for the debate to be in any way truncated when the Bill is of such great significance. The overwhelming reason why we shall vote against the Bill is that the Government are adamantly opposed to incorporating in the Bill any form of public interest defence. That defence has long been accepted under the civil law of confidence. In the "Spycatcher" case, the House of Lords described the justification of that defence with great clarity. Lord Goff of Chieveley put it in this way :"It is incumbent upon the Crown in order to restrain disclosure of Government secrets, not only to show that the information is confidential, but also to show that it is in the public interest that it should not be published although in the case of private citizens there is a public interest that confidential information should as such be protected, in the case of Government secrets, the mere fact of confidentiality does not alone support such a conclusion, because in a free society there is a continuing public interest that the workings of Government should be open to scrutiny and criticism." Although Lord Goff was speaking of the civil law, I see no reason why similar considerations should not operate in criminal law. At an earlier stage of that case, Sir John Donaldson, the Master of the Rolls, said :
"The press has a legitimate role in disclosing scandals in government. An open democratic society requires that that be so the ability of the press freely to report allegations of scandal in government is one of the bulwarks of our democratic society." The public interest defence is what will enable crime, abuse of power and scandal to be exposed. Without it, important areas of public administration will remain beyond the purview of Parliament and the press. To accept the public interest defence is not--as the Government wish to imply--to permit leakers, as a matter of subjective judgment, to determine where the public interest lies. That is for the jury.
The Bill promoted by the hon. Member for Aldridge-Brownhills (Mr. Shepherd) showed how the procedural requirements of the defence could ensure that reasonable steps must first be taken to draw misconduct to the attention of the appropriate authorities before the defence could be invoked. Without such a defence, the Bill will simply ensure that in this country the net of secrecy is cast over wide areas of public administration only to be pulled aside when Ministers, in their discretion, decide that it is right to do so. It is not hard to understand that some Ministers seek to preserve that prerogative. It would be harder to understand the House of Commons being their accomplice. I hope, therefore, that the House will resolve to reject the Bill.
6.13 pm
Mr. Julian Amery (Brighton, Pavilion) : I am in some doubt as to whether I can support my right hon. Friends in the Lobby this evening. I hope that my right hon. Friend the Minister will listen to what I have to say. I am no crusader for open government when it comes to the secret services. By their nature, some of their operations, both abroad and at home, must be conducted by means which would be regarded as illegal abroad and at home, unless
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covered by warrant. I am clear about the fact that one cannot put the decisions about such work into commission.My right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath) appeared to come down in favour of the American system. I believe that anyone who has read Mr. Woodward's book. "The Veil" will see that the conduct of American intelligence and covert operations has been completely paralysed by Congress attempting to exercise an overview of those measures. I do not believe either that there is anything to be said for a retrospective supervision by Privy Councillors or judges. I yield to no one in my respect for Privy Councillors, but I consider that only one or two of them would be competent in the matter. Of course, it would be quite wrong of me to put myself forward in such a context !
The failures of the secret services are broadcast, but, of course, their successes are unsung, which is as it should be. Supervision would not have altered the balance except that it might have restrained initiatives and led to omission. I believe that my right hon. Friends on the Front Bench share that general approach. My anxiety is that their recent rigid interpretation of the obligation of lifelong confidentiality may lead to exactly the opposite result to what they want. I shall not go into detail, but my experience is that it has already damaged morale in the services concerned. It has certainly injured the reputation of those services. If that is persisted in, it may lead to the demand for extra-Executive control, which has happened already in the Security Service in the shape of the Bill that was before the House last week. I am concerned that that will not happen for the secret intelligence service. The obligation of lifelong confidentiality is, of course, right. Those who join the service must take a Trappist vow, but it must be interpreted with some flexibility. There is a human aspect to it. A man--or, in these modern times, a woman--who joins the service has, perhaps, a lifelong career, but must never explain to his friends, his wife or his children what he is doing. Nobody knows when he goes to the office in the morning what it is about. He can never talk about it when he comes home. Nobody knows whether he has been a success or whether he has been promoted in rank.
Therefore, it is not unreasonable that, when he retires after a lifelong career--he may only have been in part-time service or loosely connected with it, as I have been--he would want to write something about it. So long as what he writes is not prejudicial to the safety of other members of the service, the reputation of the service or the national interest, he should be allowed to do so.
The same is true of the service itself. The British secret services have been held in high esteem all over the world by those who are interested in such matters. How do we maintain that esteem? Of course, partly by secrecy, but partly by allowing the different successes to be known after an appropriate time.
New recruits to the service must also be considered. As a young member of one of those services, I profited a great deal from the memoirs of Paul Dukes and Compton Mackenzie and others, who had been through the mill. What they had to say taught me a lot and in a sense was an inspiration.
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I believe that all those matters used to be recognised by the secret services. There was a perfectly good convention that, if one wanted to write, one submitted one's text to the proper authorities and they discussed it with one. If they thought that there was a paragraph or a sentence or, perhaps, names mentioned that would be better omitted, one was told, and most of those who submitted their texts would have agreed. I submitted my books twice and very little censorship was exercised upon them.I raised this issue when my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) had a debate on this matter earlier in the year. I have also raised it since in correspondence with my right hon. Friend the Home Secretary, who wrote to me to say :
"I am happy to confirm that it is and will remain possible for members and former members of those services to publish with authority, without contravening the criminal law. Applications for authority will continue to be received and carefully considered." I thought that that was reassuring and, as my daughter was getting married on the day of the debate on the Security Service White Paper, I did not join in it nor did I raise any further questions. On reflection, however, I must ask whether my right hon. Friend's statement is reassuring enough. What will be the criterion of reasonable authorisation?
The precedents are not encouraging. I wish to refer to two books that have been commissioned by the Cabinet Office--I am sure that the Minister will know all about them. One is the "History of Deception Strategy in World War II" by Sir Michael Howard, until recently the Regius professor of history at Oxford. That book was commissioned and has been paid for, but, although Sir Michael was assured of its publication, it has been vetoed. However, I understand that the services concerned were happy about the book.
The other similar book is by Mr. Anthony Simpkins, who has written about some of the wartime operations of the Special Operations Executive and MI5. Unless I am mistaken, that book was also commissioned by the Cabinet Office. It had been vetted, and no objections had been raised. The publication of those books has been stopped on a narrow interpretation of the lifelong obligation to confidentiality.
I now come to the Wright case. It is painful for any Government supporter to discuss this. In my experience, it is an example of unparalleled ineptitude in the conduct of administrative affairs by any Administration of which I have known, or indeed read. Had Graham Greene or Evelyn Waugh written a satire about it, it would have been panned by the reviewers as far-fetched.
There was never a chance of success even if the Australian courts had found in our favour, which was extremely unlikely. Publication would have taken place in the United States or elsewhere. Besides, there was no serious reason to deny publication or to deny its import into this country. Looking back, I can see that there was a logic in stopping "Lady Chatterley's Lover" being imported into this country. It might have put the wrong ideas into the heads of wives of landowners or into the heads of their gamekeepers.
Who could have been subverted or who could have suffered from the import of "Spycatcher"? Most of the information had already been made available by Harry Chapman Pincher and, as Mr. Wright has subsequently admitted, a good deal of the book was invented.
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I do not want to rub the Government's nose in this more than I can help, but my argument is based on the convention that I have described. The normal course of events is to submit one's book and then have it discussed. My understanding is that Mr. Turnbull, Mr. Wright's lawyer, and Heinemann, the publishers, submitted the text in April 1986 to the authorities. It was rejected and any question of negotiation was rejected by the Treasury Solicitor--I think it was Sir John Bailey--on the ground that the Government were concerned not with what was in the text, but simply with the principle of lifelong confidentiality. The Government refused to discuss it and simply said "No, you cannot do it". Is that true? That is what Mr. Turnbull has told me and what he has published- -I cannot vouch for that information, but I hope that the Minister will when he replies.If what Mr. Turnbull said is true, I think that we have done something of a wrong to Mr. Wright. Precendent would have entitled him to expect that he could have submitted his text and argued about it. His reputation has been blackened. I believe that one of the Law Lords compared him to Philby, although there is nothing in the book that is, in any sense, treasonable. Of course, he has been enriched beyond measure. He would have never made £25,000 out of the book if the Government had let it go. If they had paid him £50,000 to stop its publication, he would have done well. But we have blackened his reputation, and we may have done him a considerable wrong. Then there is the case of Mr. Cavendish. He and his publishers have told me that he submitted his text and that it was rejected on the same grounds. I do not want to press my hon. Friend about this case because I believe that it is still sub judice. I will only note that two thirds of the book can be freely published in England, but none of it in Scotland. That is a rather curious state of affairs. In the light of those cases and referring back to my right hon. Friend's assurance in his letter to me, I must ask the Minister to spell out the terms under which publication would be reasonably authorised. I hope the Minister would say that authorisation would not be withheld, subject to the excision of anything that endangered personnel, endangered existing or potential operations, endangered technology, or could cause grave embarrassment to the department or service concerned. My hon. Friend should also add that, in event of disagreement with the author, there would be some provision for appeal. I am not suggesting a public or judicial appeal, but appeal to an ombudsman. If I understand the matter correctly, that person is now intended to deal with questions of conscience.
If the Minister cannot give me such information tonight, I will find it hard to support my right hon. Friend in the Lobby, and I suppose that some of us would have to consider drafting an amendment expressing the conditions that I have outlined. I hope that we will not have to do that, because that would be a great bore for the Government and a great bore for those of us who are concerned about this.
The important matter cannot be ducked because a number of books are in the pipeline at the moment. Some I know about, some I do not. Given that the recess is coming, before the Bill reaches the Committee, it would be nice to know that clearance had been given or not unreasonably withheld to those books that are now "on hold" until this debate has taken place.
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This is not the only issue in the debate. The hon. Member for Caithness and Sutherland (Mr. Maclennan) raised a broader scheme of issues to which the House must give attention.Mr. Aitken : Before my right hon. Friend leaves the crucial argument that he has just made, is he aware that he has put the Government on a devasting spot? An answer is vital. In addition to the cases that he has cited, the entire American system, which works extremely effectively, follows the blueprint that my right hon. Friend has mentioned, but with one important addition. Under the American system, anyone who does break the rule of not getting proper clearance can be hit far harder and far more effectively than we were ever able to begin to hit Mr. Wright.
Mr. Amery : I am grateful to my hon. Friend. I had not thought that I had put a devastating bomb under the Government Front Bench, but if I have, so much the better, and I hope that my right hon. and hon. Friends on the Front Bench will have interpreted that in the way that my hon. Friend has expressed.
I apologise if I have detained the House too long on this one aspect. However, I have been involved with these services personally in war and afterwards. I was also responsible at the old Colonial Office and at the Foreign and Commonwealth Office for some supervision of those services. Britain has been held to be pre-eminent in those services in the past. As hon. Members realise, the services depend on individuals, often with idiosyncratic temperaments. To put it in a coarse way, spies are not civil servants in the ordinary sense, and they must be handled with sensitivity. They are not run of the mill. Failure to recognise that will call down on the services the very thing that I--and I think the Government--want to avoid, namely extra-Executive control of their operations, whether that be through Privy Councillors or judges. If that happened the Government would have put at risk two vital arms of our national safety.
6.31 pm
Mr. Norman Buchan (Paisley, South) : It is unusual for me to participate in a debate on official secrecy. For a good deal of my life I have been concerned with secrecy which comes from censorship of printed matter, in broadcasting or newspapers. I have been less concerned with the Official Secrets Act 1911. However, over the past few years I have taken an interest in what has happened in this country and the crucial changes that have taken place arising from the "Spycatcher" case.
The right hon. Member for Brighton, Pavilion (Mr. Amery) referred to the harm which might or might not be done through the importation of "Spycatcher" and compared it with "Lady Chatterley's Lover", which was also banned from entering this country. I remember that a friend of mine discovered a copy of "Lady Chatterley's Lover" carefully hidden away in his young son's wardrobe. Unfortunately, his young son had hidden the expurgated edition. My friend was not sure whether he should give his son the unexpurgated edition. The point is interesting because it shows that the apparatus and attitude of secrecy and censorship begins not only in order to prevent punishment but to prevent things from happening. The
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function of censorship is not to punish--it is to prevent. That poor young soul hiding the expurgated edition is a typical example of that.If we applied the test of public interest to the decision to pursue "Spycatcher" over two years and asked whether it benefited or harmed our nation, we all know what the answer would be. It is absurd that the Government were not even fearful of that final fear of Governments which is to appear ridiculous because they went ahead with that case.
I had a telephone call from my brother-in-law in Toronto a couple of years ago. He said that he was going to arrive in Prestwick the following Tuesday week because he had a music engagement in England. He asked me if I could meet him at Preswick. I said, "Certainly. Oh, by the way, can you get me something?" He asked what and I told him I wanted a book. When he asked me which one, I said "Spycatcher". He said, "Of course--I want to get a copy myself and it's on sale in the centre of Toronto." He arrived with a copy of "Spycatcher". He had no problem entering the country and walked in without interference, carrying the book under his arm. The same week, I tried to get an immigrant into this country from India without a copy of "Spycatcher". His face was brown and he was not allowed in--yet my brother- in-law walked in with a banned book. That nonsense is spreading, has increased and ought to be diminished.
One of the most worrying aspects about all this is that the Home Secretary, whom we had previously regarded as a liberal, described the White Paper in the following terms :
"This is not a freedom of information White Paper"--
just in case we thought that it was--
"and we do not propose to introduce a freedom of information Bill--[ Official Report, 22 July 1988 ; Vol. 137, c. 1419.]
He was trying to take credit for not introducing a White Paper or a Bill with freedom of information aspects. In fact, he was taking credit for not introducing a freedom of information Bill. That is an extraordinary position for an old liberal to take.
We have seen an extension of censorship this year, although I thought that last year was bad enough in that respect. For most hon. Members today, the main concern is Government secrecy. I am interested in a much wider area, of which secrecy is a part and which is helping to create the atmosphere for the other part. Over the past month, we have seen the introduction of a ban in broadcasting of six named organisations. The effect of that will not be to bring people to trial but to inhibit the directors, writers, producers and actors in much the same way as section 28 of the Local Government Act 1988 was designed not to punish, but to prevent and to inhibit. Also this month a Bill was introduced to make the Prevention of Terrorism (Temporary Provisions) Act 1984 permanent. A Bill was also introduced to make councillors take the oath. The Security Service Bill was introduced and will make legal what was hitherto illegal--that is, burgling and bugging. Now we have the Official Secrets Bill. We hoped that the Bill would improve things, but it has not. Under the Bill, offences that were previously not absolute will become absolute. If Ponting were to be tried under these provisions, the argument of the public interest could not stand up and Ponting would be found guilty.
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