House of Commons Hansard Debates for 21 Dec 1988

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Most of us find that shift worrying. As a result of the Lords' judgment on "Spycatcher", the British news media were finally allowed to report and comment on the contents of the book. Many people believe that the judgment was reached partly because the horse had already bolted. To be fair, the Lords' judgment was more extensive than that. The judgment stated that the Government would have to show that publication of information would be harmful to the public interest before the courts would order an injunction.

Lord Goff said that English common law recognises that : "In a free society, there is a continuing public interest that the working of Government should be open to scrutiny and criticism." Intrinsic to their judgment in freeing "Spycatcher" was the public interest in opening Government to scrutiny and criticism. Des Wilson wanted to know whether there was any single aspect of information that the public ought to receive and are entitled to receive, and which would be secured for us as a result of the Bill. He wanted to know whether the Bill had brought in any fresh information which would be made known to the public. We must consider the absence of any move forward in that respect in this liberalising Bill.

This country is becoming the most secretive of all Western nations. The Government have inverted requirements. In any democratic country information should be known unless evidence is given why it should not. The assumption behind the Government's thinking is that this should not be known unless the Government exempt them and allow them to be known.

There is an obligation on every United States Government agency to make public information available including opinions and orders, records and proceedings. That obligation was extended to all information, not specifically excluded. The assumption of the right to know is there.

The same thing happens in Canada. The Canadian Access to Information Act states :

"The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public." It goes on to refer to exemptions. No such assumption exists in our law, and the Government boast about specifically rejecting such an assumption.

A good deal of all that is due to the Prime Minister's lack of intelligence and imagination. I cannot imagine any person, other than someone under the domination of a second-rate and unimaginative mind, accepting such a state of affairs after all that has happened. We face the problem of an inversion of the right to freedom of information and access.

Both the Security Service Bill and the Bill now before us should be considered together, one in relation to the other. We had every right to expect from them increased democratic supervision of MI5. The "Spycatcher" case is important not in itself but because it drew attention to MI5's behaviour. We expected democratic supervision as a result. We are told that a former Prime Minister was the subject of attempted subversion. That is a serious allegation, yet it has never been properly investigated, not even through a private inquiry being undertaken.

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For the first time, we are framing MI5 in a statutory form without there being public examination of its role or of the demands that we should be making of it. Oversight and supervision of MI5 remains entirely in the hands of Ministers, but they are themselves bound to secrecy.

Mr. Rupert Allason (Torbay) : It is intriguing to hear the hon. Gentleman say that oversight of the security services will be limited strictly to Ministers. If the hon. Gentleman reads the Security Service Bill he will find that it provides for the introduction of a commissioner for precisely that purpose.

Mr. Buchan : The Security Service Bill makes a provision for the appointment of a commissioner but not for a Select Committee or even for a committee of Privy Councillors to supervise the service. The commissioner will report to the Home Secretary and the Prime Minister. No provision is made for the publication annually of matters such as those covered, for example, by the Irangate hearings, because MI5's operational circumstances are not included and are to be ignored.

Mr. Allason : The commissioner will publish an annual report, and there will be a complaints tribunal. What more does the hon. Gentleman want?

Mr. Buchan : A great deal more than that. I have said what I want. The hon. Gentleman confirms my claim that any aspects of MI5's organisational operations will be ignored. In America, we saw a crucial investigation into the Executive's very recent behaviour before a Congressional committee and under the gaze of television cameras. In Britain, we cannot even have an investigation into the so-called subversion of the Wilson Government. The American Congress undertakes such investigations within weeks or months, and America is the healthier for that.

The secrecy that obsesses the present British Government results in the population of this country knowing nothing, rather than having a right to know. The Government have made legal that which was illegal, without extending control.

That aspect of both Bills includes a provision for dealing with subversion arising from political or industrial action. That stems from a Prime Minister who has described the miners as enemies of the state. In this Official Secrets Bill, which could have liberated information and removed the atmosphere of secrecy, we see an absence of any improvement. Its real purpose is not to punish, but to create an atmosphere of secrecy--a level of confidentiality beyond all reason. We see that happening in Northern Ireland. Quite apart from the Prime Minister's deficiencies, the events of Northern Ireland are creating an atmosphere in which here, too, things can be done which ought not to be permitted.

There are parallels in the private sector. One of the most appalling cases was that of the man who blew the whistle on de la Roche drugs. He was a private individual who thought to himself, "What is happening is iniquitous", but when his revelations were published he suffered as a result. That was persecution by private interests. It is intolerable that there should be the same kind of persecution of the honest whistleblower in public affairs, though we have taken some steps to deal with that situation.

Throughout history, the honest whistleblower has played a very noble role. He has been forced into doing so.

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He should be given the change to legitimise his relevations so that there can be a public trial in which the public interest is considered. Some Conservative Members have been so affected by the Government's attitude to secrecy that they cannot even understand the concept that sometimes a person may have access to confidential material which should not be confidential.

Another worrying aspect has been the Government's tendency, until now, to avoid a case coming to trial by using the Official Secrets Act 1911, fearing that honest juries would respect the honest whistleblower and find in his favour. That is what happened in the Ponting case. In my view, the judge clearly directed the jury to find him guilty, saying that there was no defence of public interest, but the jury said, "This judge is talking rubbish--it is right that we should know such things." The jury went against the law to find Ponting innocent because common sense and decency told them that he shouild be found not guilty. Now that the Government are failing to make prosecutions stick, and now that the public have largely rumbled the Government, the Government are changing the statute and turning to the law of confidentiality so that a law which was intended to deal with commercial situations can be used in public matters. Allied to my arguments about the public dissemination of information is the Lobby, which is another instrument in the Government's creation of secrecy, enabling the Government to manipulate news. I hope that the blow that the Lobby has received in respect of the Queen and the Russian invitation and other matters will have an effect.

I shall not reivew the entire Bill, but I agree entirely with the right hon. Member for Old Bexley and Sidcup (Mr. Heath) that the place for detailed examination is in Committee. However, I make again the point that the Bill has not brought the emancipation that we expected, and the opportunity has not been taken to secure control over secrecy. On the contrary, the Bill makes absolute that which was not absolute before. It comes at a time when the press has even less opportunity to investigate matters of public interest.

The United States has its Congressional apparatus for investigation, and we used to be able to claim that in this country at least we had a diffuse press and public service broadcasting which perhaps could remedy certain deficiencies, but that is no longer true. The press is now in the hands of three men--a "tripoly" or triple monopoly. It is dedicated to stories about pop stars, royalty, and so on. It is no longer the investigative press of 20 years ago when we had the iconoclastic Daily Record on the one hand and the views of Lord Beaverbrook in the Daily Express on the other. Still, they printed far more important news on their front pages than they do today. The modern press is totally ineffective. My concern is that as the Government's apparatus of secrecy is developed, so the apparatus to cope with it by our mass communications will deteriorate. Our public service broadcasting structure is also being destroyed. It is passing into commercial hands--the same hands of Maxwell and Murdoch--who control the mass media and none of whom find it necessary to protect the public interest by disseminating certain information. Anyone reading Margaret Drabble's article in The Guardian today will understand the depth of feeling among civilised people about what is happening to our country. Recently I spoke to an unlikely informant. He is a Communist, and a journalist who has represented the

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Italian newspaper Unita in Paris for many years. When he was in Britain recently, he said to me, "Norman I have always regarded Britain as the bourgeois country in excelcis--respectable, orderly, neat and clean. I see dirt, filth and squalor around and I see that your papers have degenerated--we used to send for them." That is the voice of a Communist who sees that we are now incapable of expressing our best liberal position. I am talking about a man who understood something about our civilisation in Britain and who honoured it. We are becoming a sleazy, second-rate country. We have had liberals in Government who now boast that they are not bringing in a Bill on freedom of information.We are facing a major crisis in the combination of inadequate media and a secretive press. Censorship, directly or indirectly, has increased and is increasing--and by God, it ought to be diminished.

6.51 pm

Mr. Jonathan Sayeed (Bristol, East) : On 5 February 1960, in a maiden speech on the Public Bodies (Admission of the Press to Meetings) Bill, an hon. Member stated :

"the paramount function of this distinguished House is to safeguard civil liberties rather than to think that administrative convenience should take first place in law."--[ Official Report, 5 February 1960 ; Vol. 616, c. 1357-8.]

The Bill before us seeks to replace an Act that makes it illegal to reveal trivia or what is embarrassing to Government with a law that is confined to official information when its unauthorised disclosure would cause unacceptable harm to the public interest. By supporting it, my right hon. Friend the Prime Minister has re-emphasised a conviction that she first stated in her maiden speech.

No one can deny that the Official Secrets Act is a geriatric absurdity which is incapable of functioning correctly. No one can ignore the fact that the Bill removes from criminal jurisdiction a wide range of offences, whole classes of people and a mass of trivia. However, all should accept that, for the security and safety of us all, there are some secrets that need to be kept and some people who need to keep them.

If one unquestioningly accepted some of the comments culled from the press and quoted by the Opposition, especially in the debate on the White Paper, one might be tempted to believe that the Bill had no friends at all. However, I have scanned the pages as well, and I have come up with some rather different reactions from some rather odd sources. In the comment column of The Guardian of 30 June, there is the sentence :

"Mr. Hurd tries some welcome things."

Hugo Young, in the same newspaper on 5 July, talks of my right hon. Friend the Home Secretary

"importing some sanity to the criminal law".

The Times of 30 June states :

"Mr. Douglas Hurd deserves to win a wide measure of praise for the reform of the Official Secrets Act."

Mr. Corbett : What about The Independent ?

Mr. Sayeed : I shall come to The Independent in a moment. The Financial Times of 30 June, in an article entitled "A Limited Reform", begins one paragraph with the sentence :

"Some of it is very good",

and goes on to call the measure

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"A tidying up exercise with a slightly liberal bent".

The Independent of 30 June states :

"Mr. Hurd has produced ideas which are more liberal than had been anticipated".

The Economist of 2 July gave the Bill "two cheers". If one considers the origin of those statements and the media's wish for unrestricted access to almost everything, those guarded endorsements can be construed as grudging praise.

I want to deal with two aspects of the Bill that have particularly exercised hon. Members--that there should be a public interest defence, and that there should be a defence of prior publication. As we know, under current law there is no public interest defence. Under the Bill, the blanket provision will be circumscribed. However, it would be absurd for anyone and everyone to be able to pray in aid a public interest defence on all occasions. We need to understand that the moment when the decision is made about whether a disclosure is in the public interest is not when the court decides on the matter, but when the original disclosure is made. The court merely confirms or rejects that assessment--the harm will have been done.

Hon. Members have, by necessity, to develop a breadth--if not a depth--of vision. Yet we have all come across people who suffer from tunnel vision and who so concentrate on the particular that they fail to develop the span of understanding that is essential to see clearly. I am not prepared to believe, despite what has been said, that if the editors of our great newspapers believed that a great public mischief had been perpetrated, they would be unwilling to hazard themselves to expose it. Under the harm test, they could argue that their disclosures had caused good, not harm, to the public, and a British jury would decide on that.

A Crown servant is a different case. Crown servants are elevated to a position of trust and are duty-bound to respect the confidence placed in them. Yet should they discover what they believe to be corruption or malpractice, they have not only the facility but the duty to report their concern to the permanent secretary, to the staff counsellor for the security and intelligence services, to the Minister or even to the head of the Civil Service. Does anyone, apart from the conspiracy theorist, believe that such safeguards will not be sufficient in a democracy in which trial by jury is enshrined? If some people are still unconvinced, are they not willing to accept that a person would be prepared to hazard his or her livelihood and liberty to expose gross misconduct, especially when Parliament with its privileges, and the courts with their juries, are there to protect the individual against the abuse of power by the Executive? I would argue against the suggestion that there should be a defence of prior publication. It has been suggested that, once a piece of information is in the public domain anywhere in the world, and of whatever origin or status, people should be free to publish it. By publishing it, they will promote it and add to its status. Although I in no way question the motives of those who hold such a view, it is the product of muddled thinking. Cannot they see that such a defence would encourage the disclosure of unauthorised and, possibly, damaging information? Cannot they see that there are only a finite number of solutions to a given problem, so such a defence would encourage irresponsible journalists to embark on fishing expeditions? Do they not understand that to permit the uncontrolled repetition of stories emanating from the

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foreign media whose aims, interests and standards of accuracy and probity are different from our own would do nothing to enhance the safety and security of our people?

For very good reasons, successive Governments have refused to confirm or deny a story, even when it was in their short-term interests to do so. Sometimes the consequence is that confidence is needlessly undermined and fear is unnecessarily caused. The defence of prior publication would increase that likelihood. It would be a recipe for mischief-making and would be in no one's interest. I know that many other hon. Members wish to speak in the debate, so I have confined myself to dealing with the suggestions that there should be a blanket defence of prior publication and an automatic defence of public interest. I shall conclude with the observation that, as my right hon. Friend the Home Secretary said, the Bill is not a freedom of information Bill--nor should it be. It is a Bill that seeks to inhibit the disclosure of information that, if divulged, could threaten us all. I am satisfied, as the House should be, that there are secrets that need to be kept and people who need to keep them. The Bill clarifies which they are and who they are, and it is to be commended.

6.59 pm

Mr. Tony Benn (Chesterfield) : The Bill has little to do with safeguarding national security, because there are very few real secrets, and they are certainly not permanent secrets. Details of military equipment become outdated. The secrets of negotiating positions, which are prepared for Ministers when they go to international conferences, become public knowledge when they are disclosed in the negotiations. Economic particulars that may be exchanged between Governments expire with the passage of time. I remember vividly one occasion when I was the Minister in charge of atomic energy. I had in front of me the most secure documents, headed "TOP SECRET : ATOMIC UK eyes only". However, I read the newspapers, and the same information appeared in the New Scientist. What was the secret was that my paper stated what he knew we could do, whereas the New Scientist was saying what it thought could be done in respect of the centrifuge. Therefore, it is absurd to speak as though the Bill is necessary to protect such information. The Bill was devised, drafted and presented deliberately to conceal from the electors information that they need to exercise their democratic functions. Discussion about the Bill has skirted the real question. What we are discussing is a constitutional Bill because today we are discussing not just the details of individual disclosures but the relationship of power between Government and governed. Nothing is more relevant to the power relationship than how much knowledge is available to the two parties.

To read a Bill that is alleged to defend democracy when there is no reference in it to the rights of the electors, or the rights of the people, is a revelation of what the Bill is about. It does not have to be a freedom of information Bill to suggest that the people of this country have some rights. Although I am sure that it is not necessary, I remind the House that we only borrow the power of the electors on polling day. That power is entrusted to the Government by the electors on loan, and the electors then decide whether to renew their confidence at the subsequent general election. If, in the period of office of any Government, the public are denied knowledge of what the Government or

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the state are doing, they cannot exercise that right. It is important to recognise that we are discussing matters that may not be known even to Ministers.

I was somewhat amused by the Home Secretary's attempt to present himself as a great reformer. I looked up the Witchcraft Act 1735 because I had a distant memory that I was in the House when it was repealed. I was right : it was repealed in 1951 by the Fraudulent Mediums Act 1951. Some poor woman who was a fraudulent medium had been prosecuted by an anxious policeman under the Witchcraft Act because he could not think of anything else to get her for. I sat in Parliament when the Witchcraft Act--or a part of it--was still on the statute book. However, I do not remember the Law Officer who presented the later Act saying, "This is an earthquake of reform." Indeed, he was a bit embarrassed that the Witchcraft Act was still on the statute book, as Ministers should be about the Official Secrets Act 1911. The Act is being changed not because of a wave of liberalism from the Home Secretary, but because it is absurd, unworkable, unpopular and unenforceable, so let us hear a little less about the reforming achievements of the Home Secretary.

When one considers constitutional questions, many issues arise that are not often discussed. The one that most interests me is the lifelong obligation of confidentiality to the Crown. Crown servants are identified. However, we must ask, what is the Crown? Who is the Crown? Where do we find the Crown giving orders to anybody? "The Crown" is a code for that concreted area, the state within a state, which the Government believe needs to be more forcibly protected. I am a Crown servant, as I have been a Minister. I looked in the Bill to see whether I too am obliged to have lifelong confidentiality to the Crown, and I am. It is absolutely clear. Back-Bench Members of Parliament who have never held ministerial office are not. However, as I look around the Chamber, I see other Crown servants who would be covered by the Bill.

When we consider "the Crown" in respect of secret matters, we must ask where it fits in. I shall take the Peter Wright case. Did the Queen say to Peter Wright, "Get rid of Harold Wilson"? No. Well then, who was the Queen's first Minister? It was Harold Wilson. Did he say to Peter Wright, "Get rid of me"? No. Did the Cabinet say to Peter Wright, "Get rid of Harold Wilson"? No--the Cabinet never knew. Did Parliament say it? No. The truth is that for the purpose of the Bill, "the Crown" is the language used to protect the activities of people who are no friends of democracy, the secret services which believed that in trying to get rid of Harold Wilson they were answering the wishes of the Crown. We are discussing a major constitutional Bill. Let us consider the way in which the secrets are suppoed to appear and must be protected. I can think of some examples, including Martin Gilbert's biography of Winston Churchill--this was touched on earlier--which reveals that, before the war, civil servants gave masses of secret documents to Winston Churchill because they thought that Neville Chamberlain was betraying the national interest by failing to re-arm. The first time that I came to the House--in 1937--I heard Churchill speaking on the Naval Estimates. I did not know, seeing him surrounded with his Blue Books and White Papers, that he

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was also getting a steady drip of information from civil servants who thought that Neville Chamberlain was a traitor. But that is a fact.

I could take more recent cases. The Sandys case has been referred to. Duncan Sandys was a captain in the Territorial Army. One of his mates in the Territorial Army told him that the anti-aircraft defence of London was defective. Sandys tabled a question. The officer who told him was prosecuted under the Official Secrets Act. It became a famous parliamentary case. Would such a case be stopped by the Bill? Let us consider the Zircon case, when Mr. Speaker--I sympathise with him--was lectured on the absolutely vital necessity that nobody should see the film. Mr. Speaker, not knowing how to respond to an appeal from Ministers, banned the Zircon film. Was that film so secret and so damaging? What was secret about the Zircon film? I can tell the House that it was the fact that Sir Frank Cooper, the former permanent secretary to the Ministry of Defence, said in the film that we did not have an independent deterrent. That was very embarrassing, since the Government had been pretending for years that we did have one.

We could consider also the Belgrano case, to which my hon. Friend the Member for Linlithgow (Mr. Dalyell) is always referring. It would have been damaging to let it be known that the Conqueror was pursuing the Belgrano while it was happening, but it is in the public interest to know whether the Government knew that the Belgrano was going home, and the relevance of the Peruvian peace objective. We cannot justify this legislation by example.

I turn now to international examples which are even more relevant although rather less pregnant with security considerations. I was the President of the Council of Ministers for Energy in the EEC eleven years ago. While there, I was a legislator. I do not know how many people realise that Ministers in the EEC are legislators, not executives. The Executive is the Commission. When one goes to the Council of Ministers--my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) has attended the Council--one makes regulations. Before the regulations are made, there is a mass of negotiation between one's Department, other Departments, Departments in other countries and the Committee of Permanent Representatives--all negotiate the package which the Commission will consider and the Ministers then endorse. All that is now to be covered by the new restrictions in the Bill.

As President Jacques Delors has said, 80 per cent. of the legislation enacted by national Parliaments will soon be enacted by the Commission. Eighty per cent. of the legislation that we now discuss in Parliament which is reported in Hansard for all to see and which will soon be televised will be covered by the new Official Secrets Bill because of its international implications. The Bill will cover not only the EEC but our international military arrangements or our discussions with the International Monetary Fund, in which other countries negotiate.

The Bill would reduce public discussion of public affairs to municipal matters. We would be allowed to discuss only things that are purely municipal--things that are about England or the United Kingdom alone. We will not be allowed to enter a discussion of issues that touch on

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international negotiations. That is a major restriction. It is, however, a product of the internationalisation of the world, not a product of this Government.

The danger of abuse is the greatest in regard to intelligence. I shall speak in a measured way because I am sure that there are fine public servants in the security services who are trying to do their best. Nevertheless, the danger of abuse is very great. Ted Short, formerly Lord President of the Council, was told by Chapman Pincher that he, Pincher, had access to a Swiss bank account which Ted Short was supposed to have had. It was a forged bank account. There is no question about it being forged by the security services.

Mr. Allason : Will the right hon. Gentleman give way?

Mr. Benn : I am not giving way for the moment, because I want to finish this point.

In his book, Peter Wright said--he was, after all, the deputy director-- that the fabrication of evidence against Labour Ministers was part of the strategy. Even if it is only Wright confessing, at least we got an explanation later of one of the most revolting episodes that I recall-- involving the use of civil servants loyal to the Crown to destroy a Government elected by the people to be the Crown's Administration. I hope that the hon. Member for Torbay (Mr. Allason) wants, to raise a serious point, because I am on one.

Mr. Allason : The right hon. Gentleman has mentioned the famous Ted Short letter. All the research that has been done to determine the origin of that forged letter has come down to a group of Socialist Workers in Leicester. As for the Peter Wright plot against Harold Wilson, I do not know how many times we must repeat that Peter Wright went on television in the "Panorama" programme of 15 October when he said that the plot was down to him and that he was the only person in it.

Mr. Benn : I believe that the hon. Gentleman was in the Security Service or writes about it--I do not know much about it. All I can say is that the evidence on Nasser is Anthony Nutting, who said on television that Eden had told him to get rid of Nasser. There is a lot of other evidence. If the hon. Gentleman really has served in the Security Service--I do not know whether he has or whether he just writes about it--he will know that assassination is one of the instruments of security.

Mr. Allason : Will the right hon. Gentleman give way?

Mr. Benn : I am not giving way again, because I was not on the Nasser point.

Mr. Allason : But he was not assassinated.

Mr. Benn : When the hon. Gentleman intervened, I was talking about the fabrication of Ted Short's bank account. I am afraid that, if any structure of power is surrounded by secrecy, there is a danger of abuse.

I remember when, as a Minister, I was approached by a Conservative Member of Parliament who complained on behalf of a constituent that that constituent could not get into the Civil Service. As I am a libertarian, I took the case up. I discovered that the constituent's father read the Morning Star . Nobody should think that the Security Service does not want to veto anybody who is to the left of the Prime Minister. It tried to veto Jack Jones and Hugh Scanlon, who were pillars of the Government.

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Conservative Members may not like them, but the Security Service regarded them as security risks. The only guarantee against that is bringing these matters into the open.

Mr. Frank Cook (Stockton, North) : Is my right hon. Friend aware that, on 28 October, during a seminar for opinion leaders at the NATO defence college in Rome, the Pentagon-sponsored tutor in one of the tutorials--Dr. Robert McGeehan--said that we have come to the time when we must deprive our politicians of our best intelligence because of the way in which they have chosen to distort and misrepresent it in the defence of democracy?

Mr. Benn : The enemy within may be somewhere other than where the Prime Minister thinks it is.

I shall tell the House another story, lest it be thought that I am trying merely to protect the Left. In the 1974 general election campaign, somebody brought to me, and tried to persuade me to use, a highly scurrilous and scandalous pamphlet about the right hon. Member for Old Bexley and Sidcup (Mr. Heath), who was then Prime Minister. It was an extremely libellous document. I would not touch it. I realised later, when I read what I read, that the idea was to discredit me by getting me to smear the right hon. Gentleman and to discredit the right hon. Gentleman by getting that smear spread. I do not think that only Harold Wilson was toppled. I think that two Prime Ministers were toppled.

It would be a great mistake for Conservative Members to think that this is a Left versus Right issue. I ask Conservative Members to contemplate what they would think about a Labour Government with the powers that they are proposing to entrust to a Conservative Government. As my right hon. Friend the Member for Sparkbrook said, I can envisage circumstances in which it might be thought highly desirable to bug and burgle the homes of people engaged in exporting capital to South Africa. It is the Conservative party which proposes to entrust such powers to the Government. There are some issues in the House--not many--when the legislature has an interest that is separate from the Executive.

The last Labour Government have been mentioned. Jim Callaghan was bitterly opposed to open government. Everybody knew that. Everybody knew it at the time. It was only because it looked as though Clement Freud's Bill would be accepted that he, then the Prime Minister, put me on the relevant Cabinet Committee. He thought that he had better have somebody on the Cabinet Committee who agreed with Clement Freud and might interpret his Bill.

This is an argument between the legislature and the Executive. We are not talking about the great supporters of private enterprise versus the revolutionaries from the Fabian Society.

The House is being asked to give Ministers the power to designate what is secret and to determine when to prosecute. That is a power which no Parliament should give to any Government. I hope that the House will reject the Bill or amend it, or that the Government will withdraw it. If it is enacted, there will be only one safeguard for democracy. I refer to the oldest and most reliable safeguard--that people with conscience will not obey the law. Parliament never likes being told what it needs to be reminded of each generation, but the rights to free speech

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and to free religious worship were won by people who broke unjust laws. I believe that juries will refuse to convict.

The Bill is really aimed against Ponting, Massiter and Tisdall. Only the last was sentenced. If people of conscience in the security services--those who favour the security services must want people of conscience in them-- come across skulduggery, blackmail or criminal fabrication of information, and make it public on conscientious grounds, that is the safeguard of democracy in Britain, not this shabby little Bill.

When this debate comes to be studied, it may turn out that, by opening up on questions that we do not normally discuss, we will find ourselves tracing our way back to the roots of democracy. Honest, decent people will not put up with injustice, even if it becomes entrenched in a statute passed by both Houses of Parliament. 7.18 pm

Mr. Tony Baldry (Banbury) : The longer I listened to the right hon. Member for Chesterfield (Mr. Benn), the more I wondered whether he had been studying the same Bill. He and a number of other Opposition Members need to have a conspiracy theory in order to exist. Without such a theory, the right hon. Gentleman would find it difficult to have a role in contemporary politics.

Spies spying and leaks leaking always make good copy for journalists. The area is too often treated sensationally and with too much drama. We, by contrast, must act rationally and logically, remembering at all times that we are putting criminal law on the statute book. We must consider the public mischief that we seek to defeat and the public good that we wish to protect and promote. We must test the provisions of the Bill against those objectives. We must ensure, at all times, that the possible offences and defences strike a proper balance between the rights of the community and the position of the defendant. The public good that we seek to protect is straightforward. It is to protect information vital to the national interest, not information that might simply embarrass the Government of the day or any Minister.

This is not a catch-all Bill and it does not contain any catch-all provisions. It is a clearly drafted and narrowly defined measure which sets out with clarity a limited number of specific offences. The Bill is comparatively short. Its 16 clauses contain a number of defined and specific offences intended to protect the public good. Such is the care to strike exactly the right balance that invariably, to prove an offence, the prosecution will have to clear a number of specific hurdles, and to the jury's satisfaction, fulfil specific tests--of, for example, harm to the public interest--before a conviction can succeed.

For example, to secure a conviction when a journalist discloses information relating to security or intelligence, the prosecution must clear a steeplechase of hurdles. We should never forget that the burden of proof is always on the prosecution, and the standard of proof is that the jury must be satisfied that each hurdle has been cleared. If the prosecution fails at any of the hurdles, the entire prosecution case fails.

To secure a conviction against a journalist for disclosing information on intelligence, the prosecution must prove, first, that the information has been in the possession of a Crown servant or Government contractor in his official capacity. Secondly, the journalist must know

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or have reasonable cause to believe that it has. Thirdly, it must relate to security or intelligence as defined in the Bill. Fourthly, the journalist must know or have reasonable cause to believe that it does. Fifthly, the information must come into the journalist's possession in a number of ways, such as being disclosed without authority by a Crown servant or Government contractor. Sixthly, the journalist must know or have reasonable cause to believe that the information has reached him by one of those three routes. Seventhly--the canal turn--the jounalist must make his disclosure without authority. Eightly, the journalist's disclosure must cause damage to the work of the security and intelligence services. Ninthly, the journalist must have known or had reasonable cause to believe when he made his disclosure that it would, or was likely to, cause damage, or that the information fell into a class or description of information likely, if disclosed, to cause damage-- Bechers's Brook. That is a veritable steeplechase of hurdles, all of which the prosecution must clear before it can secure a conviction. I suspect that it is because editors and journalists appreciate the hurdles that the prosecution must clear that there has been little press criticism of the Bill.

The Minister of State, Home Office (Mr. John Patten) : My hon. Friend has accurately set out the hurdles that the prosecution has to clear.

Mr. Corbett : The Minister wrote them for him.

Mr. Patten : The hon. Gentleman seems rather overexcited this evening. I cannot imagine why.

My hon. Friend the Member for Banbury (Mr. Baldry) has accurately described the hurdles that the prosecution must successfully pass to secure a conviction. Does the accept that a conviction can be found against a journalist only if the prosecution can prove that the journalist knew, or had good cause to know, that he was deliberately causing harm?

Mr. Baldry : Yes-- [Laughter.] I do not know why the Opposition are laughing. They complain that this is a catch-all Bill, but when we take them step by step through a single clause showing them all the hurdles that the prosecution must clear before it can secure a conviction they will not acknowledge the facts.

Mr. Allason : That was an interesting exchange. I draw my hon. Friend's attention to clause 4(3)(b), under which the disclosure of information is an absolute offence. This is one area in which the burden of proof would be not on the prosecution but on the defence. The defence would have to show that it did not know or had no reasonable cause to believe that the information disclosed was of the type described in the Bill.

Mr. Baldry : In criminal statutes the burden of proof never moves to the defendant. The defendant is entitled to raise a defence and it is then for the prosecution to negate that defence.

I opened The Times and other newspapers today expecting ringing declarations against the Bill, but there was none. The press appreciates, even if the Opposition do not, the great care that has been taken to get the balance right.

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Mr. John Patten : Does my hon. Friend agree that the frivolous attitude displayed on the Labour Front Bench shows that the Opposition have not read or understood the Bill, whereas the journalists and editors of our great national newspapers have read the Bill and understand the considerable protections that are offered to them? That is why they no longer criticise the Bill on those points.

Mr. Baldry : As I listened to the speeches of the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) and subsequent speeches from the Opposition, I came to believe that they could not have studied the same Bill as we did. I hope that my hon. Friend will ensure that they are all provided with another copy.

Mr. Hattersley : The hon. Gentleman is entitled to know the cause of the outbreak of laughter in the middle of his speech. I was just telling my hon. Friends about a letter sent by the Minister of State to a newspaper setting out eight hurdles which journalists had to overcome. We were enjoying hearing the hon. Gentleman read it during his speech.

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