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Mr. Baldry : I am glad that the right hon. Gentleman acknowledges that those hurdles exist because nowhere in his substantive speech today did he recognise that the Bill has been tightly defined and narrowly drafted to ensure that a proper balance was struck. If one listened only to the right hon. Gentleman, one would think that the Bill had many catch-all provisions, which it clearly has not. It is clear the Ministers and draftsmen have taken great care to get the balance right in the Bill and to define more clearly than was possible in the White Paper the areas that should remain in the criminal law and the harm test that should apply. Under clause 3(1)(b) information received in confidence from overseas Governments or international organisations will not be the subject of an absolute offence. It will be subject to the same harm test as information on international relations. The harm test is narrowed by replacing the general reference to prejudicing dealings between the Government and that of another state or an international organisation with the more specific test of jeopardising the interests of the United Kingdom abroad. No hon. Member could object to the clarity with which that is now defined.
The definition of information likely to be useful to criminals, which was criticised as being too wide, has been narrowed to information that
"results in the commission of an offence facilitates an escape from legal custody impedes the prevention or detection of offences or the apprehension or prosecution of suspected offenders". A jury would have to be convinced that unauthorised disclosure had, or was likely to have, that effect. What possible objection could there be to any one of those elements in that cause ?
Since the publication of the White Paper, my right hon. and hon. Friends have sought to take on board the views expressed to them and to ensure that the Bill strikes exactly the right balance. It is a well defined Bill. Much of the opposition to it stems from the claim that it contains no defence of public interest and no defence of prior publication. That shows a complete misunderstanding of the Bill. On the question of public interest where there is a hard test under which a defendant could argue that the disclosure caused good, not harm, to the public interest. It would be for the jury to decide. Opposition Members appear to have forgotten the existence of those 12 men and
Column 511women. However, a defendant could not argue that, although is disclosure did cause a degree of harm, because it also did some good the harm did not matter. That has never been a principle of English criminal law, so the Bill is consistent with legal history. On the question of prior publication, under the harm test a defendant could argue that he had caused no harm beyond that created by the earlier publication. It would be for the prosecution to prove otherwise, and the standard of proof would have to be such that a jury was certain that an offence had been committed. The prosecution must overcome those hurdles.
It does not lie in the mouths of Opposition Members to criticise the Bill's lack of public interest and prior publication defences. They should not forget that in 1978 the then Labour Government proposed no defence based on public interest or on prior publication. Indeed they did not go anywhere near so far as this Government in providing a test of harm. The Labour Government provided for the binding use of ministerial certificates so that at the end of the day it was the Minister and not the jury who decided the case there, there has been a veritable bonfire of ministerial certificates. We must study the reality of what the Bill proposes. My right hon. Friend referred to it as obfuscation, but I do not think that Opposition Members have read the Bill.
The Bill is a sensible, balanced measure that will do much to restore a sense of proportion to this whole area of law, and the sooner it reaches the statute book the better. I hope that as the Bill goes through its Committee stage we can debate the reality of what it does and what it contains, and the actuality of what it says, rather than having a debate based on the conspiracy theories invented by some Opposition Members.
Mr. Jeff Rooker (Birmingham, Perry Barr) : There is not a piece of Government legislation about which the hon. Member for Banbury (Mr. Baldry) could not make the same favourable speech, with only slight changes in the odd sentence. It was a lapdog speech. The hon. Gentleman made no attempt to answer any of the legitimate points made by hon. Members from both sides of the House. It has not been a one-sided debate.
Had the Home Secretary felt able to include a public interest defence somewhere in the Bill, that would have gone a long way towards lessening some of the natural suspicions that were bound to arise. It is no good Ministers lecturing the House and saying that there will be an opportunity to put that defence to a jury--one which, in any case, would be vetted. The fact is that the words "public interest" do not appear in the Bill. The first hurdle put up in a court against the use of a public interest defence would be the fact that it was not specifically mentioned in the legislation. It is not as though "public interest" as a phrase is not important. Paragraph 65 of the White Paper, under the heading "Other Offences, Enforcement and Extent", states :
"The central mischief at which the Government's proposals are aimed is the unauthorised disclosure of information the publication of which is harmful to the public interest."
According to that White Paper, that is what the Bill is all about. There has been no change between the publication
Column 512of the White Paper and the publication of the Bill that takes away the significance of the first sentence of paragraph 65 of the White Paper.
Two Conservative Members have quoted extensively from the many newspapers and magazines that they obviously read daily. The hon. Member for Banbury made the specific allegation that not a single newspaper today carried any criticism of the Bill. That is palpable nonsense. The hon. Gentleman clearly has not read today's newspapers ; he has read only the information in the briefing given to him by the Conservative party. He should look at today's The Independent, whose leader title is "Hurd's undemocratic society". The last sentence of the leader states :
"If Mr. Hurd would trust the people, he would reduce the temptation for public servants to stray. Unfortunately he cannot bring himself to do so."
The Independent is not a Labour-supporting news-paper ; thank heavens it is not, by and large, a Tory supporting newspaper either. It is a newspaper of record which does not agree with the Bill. Conservative Members come to the Chamber and trot out their briefs, for all the world as though the press carried no opposition to the Bill. That is not the case.
In Committee we can discuss in greater detail the defence of public interest. We must separate public interest, Government interest, state interest and, in the Britain of the 1980s, party interest. The problem is that the words "public interest" do not appear in the Bill. Judges--not all, but some--have said that state interest and Government interest are one and the same. It is just a short step from there to perceiving damage to the interests of a Government as damage to the interests of the Government's party. We must keep a distinction in mind.
Judging from the Home Secretary's speech and Home Office press releases-- the one that was released on the date of publication of the Bill and the one that was put out by the Minister on 14 December--the Government are concerned to float the idea that, if the Bill is passed, key areas of security intelligence and defence, international relations and criminal investigations are to be dealt with, tied up and codified. There is the idea that it naturally follows that any journalists, investigators or Members of Parliament who claim that Britain is still a secret society will be brushed aside as a group of misguided individuals--the obfuscators to whom the Home Secretary referred. There is the idea also that lots of information will be released. We know that it is not a freedom of information Bill, but because the Official Secrets Bill covers matters of supreme importance, such as security, intelligence and defence, anyone who says that there are still secrets in other aspects of life is misguided and a troublemaker, and does not know what he is talking about. That is the idea that is supposed to get abroad.
I shall refer to only one part of the Bill--clause 3, which is entitled "International relations". International relations are defined in subsection (5). However, international relations go much wider than that. One would suppose that the clause covered only intergovernmental communications of various kinds. Naturally it does that. However, it covers information, documents or other articles relating to international relations and any confidential information, documents or articles which do not relate to international relations but which were obtained outside the United Kingdom. International
Column 513relations may not be covered, but, because the information was obtained from states or international organisations outside the United Kingdom, they are covered by clause 3.
The disclosure in clause 3(2) is a major drafting error. Paragraphs (a) and (b) are linked by the word "or", yet one cannot read (b) without reading (a) . It does not make sense. The term "those effects" has no meaning in paragraph (b) unless it is read in conjunction with (a) . Paragraph (b) is supposed to stand quite separately.
The disclosure of confidential information that is obtained from abroad is an offence only because the information is confidential. It is irrespective of the contents of the documents or articles. I warn the Government that that point will be considered in great detail in Committee. They will do themselves and the House a service if they tidy it up or even withdraw it from the Bill by way of a Government amendment. How can one defend the idea that people can obtain information from states, international organisations abroad, Crown servants--that global expression for those who are part of the state apparatus abroad--on matters that do not affect industrial relations can affect anything under the sun?
If an offence is committed, it does not matter whether an issue is harmful, but only whether it concerns a document marked "confidential". That cannot be sustained. The briefing document that was issued to hon. Members by the Campaign for Freedom of Information on that point is valuable, and I have not heard it being refuted. If the Ministers attempt to do so, I shall be pleased to listen to and argue with them.
Mr. Aitken : Far from refuting the hon. Gentleman's case, I may be able to confirm it. Anyone who shares my experience of The Sunday Telegraph case will note that the clause is drafted with that experience in mind. The Foreign Office cannot distinguish between embarrassment and security. Because Ministers fear that some embarrassment may be incurred that is already used, in a press briefing, as the Scott report was, but causes embarrassment to our diplomatic relations, they slap it in as a criminal offence. That is wrong. The hon. Gentleman was right to zero in on it.
Mr. Rooker : That is the only point on which I wish to zero in. An extra test is applied to that information. It applies only to information from overseas sources. If I may paraphrase clause 3(3), it states that information may be regarded as likely to have any of the effects mentioned in the paragraph,
"either by reason of the fact that it is confidential or by reason of its contents and nature."
It does not state "and by reason of its contents and nature" ; it states "or by reason of its contents and nature". How it can be an offence simply because the information is confidential is beyond the pale, especially given the Home Secretary's description of the Bill as coherent, bolder and more open than anything before. It is quite ludicrous.
I understand why the clause is in the Bill, but I do not support why it is there. The scale of international trade and relations in the modern world is such that much information--not that relating to the matters that my right hon. Friend the Member for Chesterfield (Mr. Benn) raised--turns out to be economic information. Classes of economic information are ruled out in paragraph 33 of the
Column 514White Paper, and will no longer be subject to the criminal law. We shall see an enormous number of contradictions. We shall see contradictions in relation to information that comes to Britain or is used or disclosed in Britain by journalists, the media, or Members of Parliament. It is sourced overseas. It may have been originally sourced in this country by our supplying information to overseas organisations, such as the OECD.
We shall ask why it is an offence to publish and disclose information in EEC documents that emanated from Whitehall about pollution control. A document may or may not be about hazardous waste or a danger to public health, but it may set out the amount of industrial and other waste that this country imports. There are court cases in the midlands because the economic livelihood of one large company is thought to be at stake. The bottom line is economics. It will be argued that disclosure should be an offence. The Government are arguing that that is the case. I do not accept that case. We may get information on industrial safety or vocational training from the International Labour Organisation. It will be an offence to disclose it. The hon. Member for Caithness and Sutherland (Mr. Maclennan) mentioned Food and Agriculture Organisation nutritional standards. What about draft documents on the development of World Health Organisation teaching standards, papers about efforts to cut child mortality and papers on the control of oil pollution from the International Maritime Organisation? The disclosure of information from those sources which could or could not have an economic or public health content in no way affects security, intelligence or defence. Surely it cannot be defended by Ministers that people who disclose such information should be hauled before a jury.
We have heard from Ministers and Conservative Members, sounding for all the world as though they had been before a jury : "Well, of course, being hauled before a jury is nothing. If one is innocent, the jury will find one innocent. It is nothing to be worried about." That has not happened to me, but I know what it is like to come before the full jury of the House of Commons, having had the experience of making one personal statement to the House. That can be nothing compared with appearing either in the box at the Old Bailey or at the Bar of the House, as my hon. Friend the Member for Linlithgow (Mr. Dalyell) did long before I came to the House. It should not be shrugged off with the aside, "With a jury you will be all right."
I wish to give two further examples before I resume my seat. The first concerns product defects. Whenever Ministers or the media ask what I am going on about and what information is being held back that we want, I would like to say, "Give me a list of what you have and I shall choose." They say, "Well that's not an effective argument." So virtually every time I say, "Let's take something simple. Let's take something that effects the man and woman in the street." This certainly affects the streets of London because they are congested with motor cars.
This Government and foreign Governments have in their charge information about accident rates of motor cars according to models and years. That information is never disclosed. It is not seen to be in the interests of the motor industry to have a league table of car models which have certain types of accidents, whether those cars are imported or made here. If that information were obtained
Column 515by British journalists from overseas sources, for example from the person in a foreign Government department who collated the information, which was then kept secret for the public good, and published the accident rates of foreign motor cars on British roads--we should bear in mind that we import 58 per cent. of our cars--it would be a criminal offence under this Bill.
Such journalists would be hauled before the courts with little defence. They would not be able to say that the Bill provides that such information should be released in the public interest. They cannot point to any part of the Bill that gives them that defence. I shall leave aside my example about hygiene regulations in food canning factories. That type of information would be caught under virtually every limb of clause 3. The British public have a right to know that information, but it will remain secret.
My final example, funnily enough, relates to a matter which I raised with the Attorney-General at Question Time a couple of weeks ago. The ownership of House of Fraser and Harrods is a matter of international relations. There is no question about that whatever. From whichever side one looks at the saga of House of Fraser, international relations are involved, as in clause 3. I should like the Minister to explain how information will be treated that has been published, mainly by one side of the argument--Lonrho and The Observer --on the takeover, involving, as it does, information from a state other than the United Kingdom.
Several states are involved, including both Haiti and Brunei. The Sultan of Brunei can certainly be satisfied that that information affects his international relations with the United Kingdom and consequently might jeopardise United Kingdom interests under clause 3(2) (a). It is clear that much of that information has been disclosed from overseas official sources.
Allegations have been made as a result of this case which concern international relations and the conduct of Conservative Ministers, particularly the former Secretary of State for Trade and Industry, the right hon. Member for Chingford (Mr. Tebbit). There is a prima facie case that his conduct as Secretary of State fell well below what is acceptable in the conduct of public administration on merger policy. I should like to get to the bottom of this, and it is clear that one party to the merger takeover would also like to get to the bottom of it. By legitimately pursuing its interests, it will disclose all sorts of information from overseas state sources. At present, no one has talked about a prosecution, but under this Bill that would be open to prosecution. More than that, it is more likely that many politicians more partisan than I may see that Conservative Ministers in a Conservative Government want to keep the lid on a scandal affecting members of the Conservative party, by using the draconian measures in this Bill. That will certainly be put to the House and the country.
The buying and selling of major British companies where overseas interests are involved will be affected. One cannot simply say that everything is commercially confidential, and we are not allowed to know anything about it. In this particular case, there are good grounds for believing that Conservative Ministers allowed House of Fraser to be purchased by a known crook. [ Hon. Members :-- "Oh"] I am not saying anything that I have not said before. The silence and acquiescence of the former Secretary of State enabled House of Fraser to be purchased by a known crook.
Column 516Clearly, clause 3 deals admirably with public, state, Government and party interests. As such, it should not be included in the Bill, and that is a good enough reason to vote against the Bill. We are a joke, a laughing stock, in most of the civilised world for the way we run such a secret Government.
Examples were given of America, Canada and New Zealand and, although no one mentioned Sweden, it is fair to add it to the list. They are all more open on more aspects of government than we are. On the issues which really count, the measures that they operate and the penalties for those who fall foul of the system are much more severe than anything that we operate. There is a message there ; genuinely to target what counts and to hit offenders hard. That enables a democracy to operate much more trustingly between Government, Parliament and our masters, the people. This Bill mitigates against that, and as such should not receive a Second Reading.
Several Hon. Members rose --
Mr. John Wheeler (Westminster, North) : I welcome your observations, Mr. Deputy Speaker. Those who were present at the beginning of the debate will recall that Mr. Speaker suggested that we might consider 10-minute speeches. I hope that my remarks will fit within that specification.
First, I give an unreserved welcome to the Bill. It is high time that section 2 of the Official Secrets Act 1911--a 77-year-old measure--was repealed. It is discredited. It is wrong that the brand of tea served in the Home Office canteen should be treated the same way as Britain's defence secrets, with disclosure being a criminal offence. It is wrong in principle that the criminal law should be used to protect trivial secrets or information that merely happens to embarrass the Government. It is counter- productive. Section 2 is a catch-all provision, and it has fallen into disrepute.
I support the contention of my right hon. Friend the Home Secretary that the Bill will advance liberty. It is right that we should consider tightly defined legislation, and the Bill will cover only six areas of information that it is in the interests of all the British people to keep secret. These are defence, security and intelligence, diplomacy, information given in confidence by other Governments, official information helpful to criminals and the interception of telecommunications. All these matters will continue to have legal protection.
The issue of information that is supplied by other Governments has been raised, and it is important that we should dwell upon it for a moment. It has been suggested that the test of harm following the disclosure of information received in confidence from overseas Governments, on foreign organisations, would not be subject to the same criteria of consideration before the courts as other disclosures. That is wrong. The Bill will require the prosecution to argue that harm was likely to arise in a particular instance either because of the breach of the confidence which the disclosure involved or the nature of the information or its contents.
Column 517There will be no obligation upon the jury to accept the prosecution's argument and the defence will be free to argue that the disclosure was not likely to lead to harm. The onus will remain on the prosecution to prove its case beyond reasonable doubt. That is a formidable obligation, and it is right that it should be imposed upon the prosecution. It is one that the prosecution carries in all cases in this country. The prosecution will have to prove its case before a jury, and that, too, is right.
Currently, there is no public interest defence, and I do not wish to see such a proposition introduced into our law. It would generate confusion rather than certainty. It has been the position from time immemorial, generally speaking, that the criminal law defines an offence in terms of an individual's actions, not his motives for carrying them out. Motive may be taken into account by a judge when passing sentence, but it does not affect the determination of guilt or innocence. This principle should apply to the Bill.
The special duty of lifelong confidentiality will continue to apply to members of the security and intelligence services. Those who join these services do so voluntarily. There are arrangements for former officers to obtain permission to talk or write about their work, and that procedure is well understood. There are arrangements for an officer who is discontented with part of his work, or who has a problem within his department, to consult the new staff counsellor. Every officer knows from the outset, however, that there is an overriding obligation to keep silent about the work that he performs on behalf of the British people. The law provides that any disclosure by special service people is a criminal offence. That is not changed by the Bill, but the removal of so much Government information from the scope of the criminal law is bound to highlight the special position of those in the security services.
Apart from the categories which I have mentioned, no official information will be protected by the criminal law. That is the extent of the proposed liberalisation. It applies to the trivia which I have mentioned, such as the canteen menu and laundry lists, and to more important and sensitive information. It will no longer be a criminal offence to disclose Cabinet papers on controversial subjects such as health and education. The same applies to the Chancellor of the Exchequer's Budget speech. To that extent, the Bill extends freedom of information, and that is most welcome.
There has been talk of prior publication and the position of newspapers, with much comment externally by those in the media. No one could be convicted of repeating information on security, intelligence, defence or international relations unless the prosecution could prove that the disclosure was likely to cause specified harm to the public interest and that the defendant knew it. It is a formidable test that the prosecution has to overcome. Similarly, no one could be convicted for disclosing information that would be useful to criminals unless the prosecution could show that the information was still likely--this is important--to be useful despite its prior publication. The defence of prior publication is therefore subsumed within the test of harm. The arguments about
Column 518prior publication and the public interest defence are answered by what I have said and by the proposals that are set out in the Bill. 8.9 pm
Ms. Diane Abbott (Hackney, North and Stoke Newington) : The Secretary of State described the Bill as coherent and ambitious and, of course, it is neither. It is a cornerstone, however, of the Government's wider strategy, which is coherent and ambitious. We have been told by Conservative Members, and especially by the Home Secretary, that the Bill is a fantastic leap forward in reform. Let me remind them that section 2 of the Official Secrets Act 1911 has been a dead letter for over 20 years. Far from boasting about the removal from the statute book of legislation which was thoroughly discredited and almost entirely unenforceable, Ministers should be embarrassed that they have not even begun to take advantage of the opportunity with which they were presented to engage in real reform. If Ministers had cleared their minds of any thoughts of reform and of any notions of leaps forward, and had merely written on a small piece of paper the names of those who have embarrassed them in recent years--for example, Mr. Wright, Mr. Ponting and those involved in The Daily Telegraph case--and if the Government had sent civil servants scuttling off to cobble together a Bill that would ensure that all the people who had embarrassed the Government in the past would be caught by it and would serve time behind bars, this is the Bill that they would have come up with. Perish the thought that that was the motivation behind the Bill, but it is curious that all the people involved in the most embarrassing official secrets cases of recent years would have to do time as a result of this Bill. I am sure, however, that that is mere coincidence.
The point about the public interest defence is that the Government, their Ministers and almost all their loyal rank and file have shown themselves in recent years wholly unable to see that there might be a concept of public interest separate from the interest of the Government of the day. For the Government, the public interest is one and the same as the Government interest--the interest of the party in power and, particularly, of the leader of that party and her immediate circle.
In the closing years of this decade public interest has been reduced by the Government to the narrowest partisan version conceivable. These are the politics and political theories of the one-party state and I can well imagine how Conservative Members would point the finger if they emerged in the politics of other countries. Yet Ministers and seekers after office on the Conservative Back Benches parrot the political theories that underpin the one-party state.
We have heard much from Conservative Members about what can be expected from members of the security services--about how they join of their own free will, how they are not conscripts and how security and secrecy must be provided for. I remind them of what Mr. Justice Scott said, among other things, about the "Spycatcher" case. He had heard the Government's evidence and reflected on what Sir Robert Armstrong had said and on what poor Sir Robert had had to do in Australia. He had taken in at tremendous length-- greater than Ministers had been able to explain this evening--the Government's thinking about
Column 519the desirability of protecting the security services. Mr. Justice Scott, who is not a member of the Socialist Workers party, said : "I find myself unable to escape the reflection that the absolute protection of the security services that Sir Robert was contending for could not be achieved this side of the Iron Curtain." It is precisely that absolute protection that this Bill proposes to enshrine in law.
It will not do for the Home Secretary to come before the House in his familiar garb of the great reformer. The Bill tries to enshrine thoroughly illiberal and anti-democratic ideas in law--
Mr. Allason rose --
Last week we debated the Security Services Bill. In the course of the debate, the problems that the security services have had in the past were made clear--the recurrent history of KGB infiltration at the highest levels, the lack of any notion of real accountability to the Government of the day in some parts of the service, and even the propensity on the part of some members of the security services to go mad in as little as four or five years, according to some past heads of MI5. So the House knows the institutional and structural problems of the security services. It knows that the Government have no proposals, now or ever, to make the security services the subject of genuine parliamentary oversight. So how can we go on this week to enshrine in legislation terms and conditions which remove one of the only possible guarantors against an over-mighty Security Service acting against the public interest?
Of course, if members of the security services want to do a Peter Wright they should be subject to administration and management procedures and to the law. But the procedures in the Bill are more reminiscent of those governing iron curtain security services. That does no credit to Ministers, the Government and, above all, to the Secretary of State, with all his pretensions of being a liberal reformer--
Mr. Allason : May we scotch the myth involved in these continual references to Peter Wright? They are completely out of context. Peter Wright is in Australia, out of the jurisdiction of the United Kingdom ; and it would be open, even under this Bill, to any member of the Security Service to go abroad and escape jurisdiction and repeat the exercise. The Wright case is wholly irrelevant.
Ms. Abbott : Funnily enough, I agree that too many references to the Peter Wright case, which was an irresistibly humorous and comic case, tend to obscure the issues around the Bill and around that discussed last week. The hon. Gentleman has not answered my point--that the absolute protection for the security services for which the Government called in the Wright case was described by a member of the judiciary as unachievable this side of the iron curtain. I repeat that and challenge Ministers to counter what lay behind that statement.
The Secretary of State has boasted again that part of the reason why the Bill is such an amazing reforming measure is that vast areas of information will be freed from the criminal law. We are all supposed to gasp and thank him for his munificence. Of course, those areas of
Column 520information have never been the subject of prosecution in living memory anyway. What is the point of the Secretary of State boasting when, in practice, section 2 has not been used?
I said earlier that the Bill was neither coherent nor ambitious. It shows every sign of having been drafted to cure past embarrassments and to ensure that they never happen again. The Government loathe giving out information as much as vampires abhor garlic. The Government have missed this opportunity to give any right to information to the citizen. But the Bill should be taken in the context of the increasingly cowed and restricted press and media. They have been cowed by the buying off of press barons and lordships, and by the constant denigration of public service broadcasting by ill informed Conservative Members. The press and media are increasingly hemmed in.
Alone among English speaking democracies, we have a Security Service over which there is no parliamentary oversight. The Government and Prime Minister are increasingly authoritarian and intolerant of opposition, even from within their own ranks. That is the Bill's context, and it shows that the Bill is part of a coherent and ambitious design. It is a grand design which reduces the information available to the subject, thereby reducing the liberties of the subject and increasing the over-arching power of the Government and of the leaders of that Government. We believe, but we may be wrong and may be the innocent victims of conspiracy theories, that the Bill is part of an overall design. We reject that design and the Bill. The Bill is illiberal and by no means a reform. I shall be glad when the Home Secretary stops coming before the House in his gleaming white robes posing as a reformer, because in reality he is wearing the emperor's clothes.
Mr. John Greenway (Ryedale) : If the hon. Member for Hackney, North and Stoke Newington (Ms. Abbott) would read the Franks report of 1971, she would discover that much of the basis of the Bill harks back to its recommendations. However, I shall not dwell on that.
I appreciate that there are many experts on official secrets and I do not claim in any way to be one of them, but having listened to some hon. Members I am not sure that the expertise is all that it is cracked up to be. I can, however, claim one unique feature, I have signed the declaration that I will keep confidentiality--in 1965 when I became a Metropolitan police officer.
We make many promises in life, but, sadly, some of them are broken. The promise of confidentiality is not to be broken lightly. If I say nothing else in the debate, I shall say that Peter Wright was despicable beyond description and that I have nothing but utter contempt for his dishonourable acts. It would be wrong to conclude that the Wright case has prompted this reform. Successive Governments have tried to address the question of reforming the catch-all provisions of the 77-year-old Official Secrets Act. The Government are right to claim that they are taking a liberal view. I shall shortly come to my reasons for saying that.
There is a genuinely held view that disclosure in the public interest is a valid argument and that the Bill falls short of a public interest defence. I do not agree. There are two important matters to be considered on the question of the public interest defence. The first is where the greater
Column 521public interest lies and the second is the burden of proof when cases are brought to court. The greater public interest is best served by discouraging through criminal sanctions a disclosure that may be damaging or is likely to be damaging. The Bill puts the onus of proof the right way round, so that Crown servants are discouraged from disclosing information for fear that damage or harm may occur, rather than encouraged to disclose it by a public interest defence. As far as I am aware, only the Bill presented by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) contained a public interest defence. If I understand correctly what my hon. Friend had in mind, a Crown servant who leaks or discloses information would not have to prove conclusively that misconduct had occurred. Equally, suspicion would not be enough. Nevertheless conclusive proof of misconduct was not necessary. There may be other information of which the discloser does not know. The burden of proof in such a public interest defence would be on the prosecution which would have to establish, first, that no crime, fraud, abuse of authority, neglect of official duty or other misconduct had occurred and, secondly, that the discloser had acted unreasonably.
It might well be impossible to prove that misconduct had not taken place without releasing other important, confidential information which the public interest might require to be kept secret. The prosecution or the Crown would be on the horns of a dilemma. A Crown servant may have made an allegation of misconduct which on the face of it looks convincing. Public opinion, perhaps reacting to a front-page headline in one of the daily newspapers, would demand that the record be put straight. But to do that, the Crown might have to reveal information which ought to be kept secret. That is the real reason why it would not be valid to include in the Bill a public interest defence.
The alternative approach is the one in the Bill. The discloser can reveal information provided that he does not cause harm and there is no reasonable likelihood of damage. The burden of proof is on the prosecution to prove harm. Equally, the discloser knows that, however altruistic his motives, if he causes damage he will be guilty of an offence. Therefore, there is a general discouragement. The right balance must be to err on the side of caution. A public interest defence runs the risk of causing more damage to the national interest than the discloser may be seeking to protect. He may be acting only on a narrow appreciation or knowledge of the matters about which he makes his disclosures. An actual harm requirement, such as that in the Bill, reduces the risk of accidental disclosure. At the end of the day, it cannot be said to be in the public or national interest to disclose information which damages the national interest or is reckless as to whether such damage might occur.
The Opposition have asked whether the Government are right to claim this as a liberalising measure. The Opposition feel that the Bill does not go far enough. There is another point of view--to question whether some of these reforms go too far. The important point here is that under section 2 everything is caught. There are no definitions--they are not needed. The Bill specifies only those offences for which there can be a prosecution. Surely
Column 522it must be right to ask whether we have included in the Bill all the offences that we ought to include. I am not about to suggest a long list of offences that we should have in the Bill, but it is right to adopt a questioning approach from the other point of view. I should like to touch briefly on law and order. It would be reasonable in today's world to claim that the maintenance of law and order is as important a function of Government as defence. There is international terrorism and crime and mobility of criminals and terrorists, and threats are being posed to our normal civilised way of life. We see this almost every day. Is the Minister satisfied that all the eventualities required for the public interest are in the Bill? I should like his assurance that as the Bill progresses in Committee the Government will not be reluctant to introduce amendments.
Part of the answer to my question may lie in reference to other measures because we have to look at the Bill not just in relation to the Official Secrets Act but in relation to other statutes. The hon. Member for Birmingham, Perry Barr (Mr. Rooker) referred to a written question put down in 1976 by his hon. Friend the Member for Oldham, West (Mr. Meacher) about the list of offences under other statutes. I was interested to find, for example, the Marketing of Eggs Act (Northern Ireland) 1957 on that list. There appears to be no reference to the marketing of eggs in England, Wales or Scotland, but no doubt that is covered by some other statute.
We need to consider how disclosure of historical information which might affect the reputation of an individual rather than future events is covered. What about unauthorised disclosure of criminal records or police files ? Over the years, there have been a number of prosecutions of police officers and journalists--some successful and some not--when information had been leaked about police records. We need to ask whether the Bill covers the leaking of such information. When the Government published the White Paper, they gave a general definition of criminal activity. The Bill is a considerable improvement because it specifies events. It is not difficult to imagine circumstances in which the specific offences could occur. A number of past prosecutions provide clear examples. In 1966, a police officer who passed on information about a proposed police search was fined after a magistrates court hearing. It seems as though such an occurrence would be covered by the Bill under the provisions applying to disclosure which impedes
"the apprehension or prosecution of suspected offenders". In 1968, a police officer passed on information about a mail van run, with a view to robbery- -clearly an action likely to result in the commission of an offence. I could give many other such examples, but other hon. Members wish to speak.
There has been criticism of the Bill from one side. I hope that a Committee of the whole House will consider these important issues. Of course, we are unlikely in the foreseeable future to see a repeal of the legislation that we are about to enact. This is not a matter on which Parliament would wish to legislate too often. It is important that we get it right and ensure that those offences that should be covered by the Bill are indeed covered.
Column 523in Scotland. I wondered whether I could formally ask the Government to consider making a statement, even a preliminary one, at 10.15 pm.
Mr. Tony Worthington (Clydebank and Milngavie) : The depressing aspect of the argument is that Labour Members and some Conservative Members have been consistently winning the argument for a reform of the secrecy law. That happened in the Ponting, Tisdall, Massiter and Wright cases--all instances when the Government have been severely embarrassed. Flaws in the secrecy law have been pointed out. We won the argument over ministerial certificates. They were seen to be an inappropriate way of dealing with the arguments. We won the argument and there was a modest step forward in the statutory basis for the Security Service, but it did not go far. The argument has been won also in relation to the problems of hierachical organisations, the people trapped in them and the need for a counsellor within the service. Last year, in one of the high spots of my short career here, the hon. Member for Aldridge-Brownhills (Mr. Shepherd) effectively highlighted the need for reform. Unfortunately, the Government have not taken the right message from that. They believe that the way to approach official secrets is to shoot the messengers who tell them that things are going wrong and to ensure that there will be no more messengers. In the end, that will fail, just as every attempt to suppress the truth must eventually fail. It is depressing that one of the surest tests of a maturing and growing democracy is whether the public are entrusted with more and more information while the Government go in the opposite direction. Who can say after looking at the collective outcome of Ponting, Tisdall, Zircon, Wright and Massiter that it was wrong for us to have heard about those events? No one could seriously argue that we were damaged by hearing about them. Our public life was enhanced by that knowledge, but the Government's central motive is to ensure that in future we shall not know about such events.
One aspect of the Bill disturbs me. Sworn to life-long confidentiality will affect not only full-time members of the security services but those temporarily associated with the world of secrets. I take the instance of John Stalker, a person to whom peculiar things were happening. I cannot judge the rights and wrongs of the Stalker case, because I do not know, just as no other hon. Member does, about the full events. In the end, Stalker left the police service and decided to write a book. What else would a man in such circumstances do but say, "That is what was happening to me in terms of my relationships with my police authority, the Home Office, the RUC, the Northern Ireland Office and the secret services"? John Stalker's book contains references to MI5. I shall take some virtually at random. He said :
"I had authority from MI5, and the expressed support of the Home Office and the Director of Public Prosecutions."
He also said :
"Present at the meeting were Sir John Hermon, the very senior MI5 legal officer and the MI5 Belfast representative. The meeting was opened by the senior MI5 man. He made it
Column 524absolutely clear, as he had six months earlier, that his department was not standing in the way of a murder investigation. He said that MI5 was prepared to release all information to me."
That is an example of a person who, at that stage in his career, was involved with secrets and the work of the secret services and who seemed to be stitched up in terms of his investigation--having been given a job to do but then been prevented from doing it. Are we to remove from that person, who seems to have suffered an injustice, the right ever to tell his side of the story?
Mr. Worthington : A conspiracy seemed to surround Stalker everywhere. Something strange was going on that enveloped the entire Government service and the secret service, too. At the end of the day there is for some people no escape from that. They are trapped within that world and sometimes they must break free--not in any circumstances--from that entrapment.
The idea of life-long confidentiality is disturbing. As a general principle, I accept that people must exercise confidentiality in their jobs, but, as my right hon. Friend the Member for Chesterfield (Mr. Benn) demonstrated earlier, secrets come and go. What is secret at one time becomes very commonplace the next minute. There must always be some kind of filtering of what can be said by previous members of the secret service, or those people temporarily associated with it. However, to deny people the chance to put their side of history is profoundly illiberal.
One wonders whether this embargo on temporary members of the secret service will apply to Government Ministers. I do not consider that it can be right for history to be denied 20 or 30 years later the actuality of what occurred at a particular time. Many Prime Ministers and Ministers--even junior Ministers--at some stage later have found it important to tell the world their version of events. In many cases their positions have brought them into contact with what were state secrets. That they should for ever have an embargo on them speaking about that is profoundly wrong. Something should be done to ensure that they do not release current secrets, but to have life-long confidentiality as the over-arching theme is fundamentally wrong, and should be reconsidered.
I am worried about the world of investigative journalists. Certainly there are times when journalists reveal information that is extremely important. This year one of the most startling articles that I read was in The Observer, and it was about telephone tapping. The allegation was that 30,000 individual telephones were currently being tapped. The number of operatives involved in telephone tapping has doubled. In addition to the 60 tapping operatives, another team of 80 higher grade engineers maintain and service tapped lines. Mr. David Norman, who represents the telephone tappers as treasurer of the National Communications Union, said : "I can say with absolute certainty that I have been the victim of state surveillance in the form of telephone tapping for the best part of the last year."
That is the kind of information which should surface occasionally.