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The Bill ignores those important words and stretches the criminal law more widely. It replaces the large net with the large mesh, which was provided by the 1911 Act, with a smaller net with a smaller mesh, the better to catch and silence those who, at the end of the day, mainly cause this Government embarrassment.

There is a supreme irony about having this debate today. It is 21 December, the darkest day of the year. The Government have chosen darkness and rejected the chance to let the light into vast areas of Government, which could only benefit from that. Proper steps to protect our national interests from espionage and subversion are one thing, and would find universal support ; casting a wide net over information outside those areas is another and it shows that, at basic level, this is simply a Government who do not trust the people. They cry freedom and they act like tyrants.

I tell the Government that there is consensus on the Bill--something for which the Prime Minister has repeatedly asked--but that that consensus does not belong to the Government ; it belongs to the Opposition and to some distinguished right hon. and hon. Members on the Conservative Benches. Ours is a consensus for freedom, openness, honesty and accountability because-- [Interruption.] I am sorry that the hon. and learned Member for Burton (Mr. Lawrence) jests about these matters when they lie at the heart of our democracy. Ours is a consensus for freedom, openness, honesty and accountability, which are all precious ingredients, precious parts of our democracy. Part of our anger about this Bill is that it is precisely those things that the Government reject. This Bill demeans even the Government in the eyes of all those who truly care about safety, security and democracy. That is why we shall vote against it tonight.

9.33 pm

The Minister of State, Home Office (Mr. John Patten) : I congratulate the hon. Member for Birmingham, Erdington (Mr. Corbett) on his speech. He was poetic, almost Shakespearian, as befits one coming from middle England. We shall see how many divisions there are in his consensus when we vote tonight. That will be the test. We have had a long and thorough debate. When I replied to the debate on the White Paper in the summer, I said that we would listen to what hon. Members said. My right hon. Friend's Bill demonstrates that we have listened to the points made and have made changes that are reflected in the Bill. That is why I am convinced that so many of my right hon. and hon. Friends support the Bill.

An impressive list of six thoughtful and independent-minded hon. Members have spoken strongly in support of the Bill. I refer to my hon. Friends the Members for Wycombe (Mr. Whitney), for Bristol, East (Mr. Sayeed), for Banbury (Mr. Baldry)-- [Interruption.] The frivolous mood that so captured Opposition Front Bench Members during the tea period seems to have continued during the after-dinner period. I refer also to my hon. Friend the Member for Westminster, North (Mr. Wheeler), who made a remarkable speech, my hon. Friend the Member for Ryedale (Mr. Greenway), who criticised us for perhaps going too far--clearly we shall have to mark his points carefully in Committee--and my hon. Friend the Member for Derby, North (Mr. Knight), who made a notable contribution.

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I am sorry that my hon. and learned Friend the Member for Burton (Mr. Lawrence) and my hon. Friend the Member for Wyre Forest (Mr. Coombs) were not able to catch your eye. Mr. Speaker, because of the limited time. I was glad to be in the Chamber to listen to the speech of the hon. Member for Clydebank and Milngavie (Mr. Worthington)--he is not present at the moment--if only to demonstrate my expertise in pronouncing his unpronounceable constituency. Also, I do not see in the Chamber the hon. Member for Linlithgow (Mr. Dalyell), who asked my right hon. Friend 15 specific questions and asked for a letter to be placed in the Library. We shall look at the record of what the hon. Member for Linlithgow had to say.

Three right hon. and hon. Conservative Members have doubts or have expressed outright opposition to the Bill. My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) is the only Conservative Member who has spoken in outright opposition to the Bill. We respect his views, although we disagree. My right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath), who for a proper reason cannot be present tonight--he has written to say why he cannot be here--asked a specific question about the parliamentary handling of the Bill. As the provisions of the Bill go to the heart of government, we take the view that the Bill should be considered by a Committee of the whole House. Therefore, after Second Reading we shall move that the Bill be committed to a Committee of the whole House. I shall certainly draw to the attention of my right hon. and learned Friend the Government Chief Whip the important points that were raised by my right hon. Friend the Member for Old Bexley and Sidcup about proper consideration of the Bill.

I do not know which way my right hon. Friend the Member for Old Bexley and Sidcup would have voted if he were here tonight, but I know that the vote of my right hon. Friend the Member for Brighton, Pavilion (Mr. Amery) is in the balance and, to a certain extent, hangs on whether I am able to satisfy him by giving the reassurances that he specifically sought from me. I shall attempt to answer his questions and, I hope, reassure him.

My right hon. Friend is particularly concerned about the position of a serving member of former member of the security and intelligence services who wishes to publish his or her memoirs or reflections on his or her life and times in the security services. I should like to give my right hon. Friend and the House a little more detail of the authorisation procedures involved, some of which may be new and novel to the House of Commons. I can give my right hon. Friend the necessary reassurances that he sought. I listened carefully, as he enjoined me to do, to everything that he said.

All members of the services know that they should not write about their experiences in any way that might harm the work of the services or damage the national interest. I am sure that no hon. Member would dispute that. However, if a member or former member of the services wished to write material relating to his or her work, he would first talk to a senior officer about his plans for publication. All serving officers know to whom they should turn to talk about such matters, and all retired staff also have a point of contact with the relevant service. So if a member or former member prepares material which

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may have some connection with his or her work he or she will be required to send the book or article to the relevant service. That is made clear to all members of the services on appointment. No member of the services is unclear where he or she should turn if he or she wishes to seek clearance. The draft of the book or article will then be considered carefully by the service to identify points of sensitivity. As my right hon. Friend, with his distinguished record, will appreciate all too well, that can be done only by staff who have a detailed knowledge of the consequences of the publication of material affecting particular areas. They will then submit their reasoned analysis to the senior members of the services. So the sole criterion for authorising publication is whether publication of a particular piece of information will jeopardise national security directly or indirectly. It is a judgment about considerations which are relevant today, not about past history or former embarrassments. If a point of difficulty were to be identified it might still be possible through discussion to agree with the author a change in the text to overcome the problem. My right hon. Friend has gone through this procedure when publishing his own works.

Mr. Allason : Will my hon. Friend give way?

Mr. Patten : If I could continue to explain in full the points that I want to make to my right hon. Friend the Member for Pavilion, I will then give way. I want to set out the procedure so that the House can understand each step. If the problem is larger than just a few minor textual changes or if agreement cannot be reached, sometimes authorisation will not be given. My right hon. Friend will understand that authorisation cannot be given on every occasion, but I can assure him that this decision would never be taken by one person alone, but by senior members.

My right hon. Friend then asked where a member of the service would turn if he still felt dissatisfied. He will turn to the staff counsellor. At present our distinguished staff counsellor is Sir Philip Woodfield. That is a matter of public knowledge. This applies not just to present members but to former members of the services. If a member or former member is seeking to use publication to report anxieties that he or she may have about his or her work or former work, or if he or she is concerned about the reasons for a refusal of publication, he or she can go to the staff counsellor who can, if necessary, put him or her in touch with the relevant Secretary of State or my right hon. Friend the Prime Minister. Following those reassurances, I hope that my right hon. Friend the Member for Pavilion will be persuaded to join us in the Division Lobby tonight.

Mr. Allason : This is a serious area of difficulty and one that is recognised by hon. Members on both sides. We accept that there is some sort of mechanism for authorising publication, but should the sole arbiter of these matters be the former Department of a particular employee? Would it not be better to have a publication review board similar to the one that works so well in America?

Mr. Patten : It would be extremely difficult sometimes for a publication review board to go into areas which were still of operational importance to the security of the nation, its economy or the welfare of its citizens. The

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system that I have outlined, parts of which have been outlined to the House for the first time tonight, gives the sort of cast-iron assurances that someone who wishes to publish has redress-- [Laughter.] As usual, there is raucous laughter from the Labour Front Bench. That is about all that has characterised their behaviour in today's debate.

I listened carefully to the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley)--

Mr. Maclennan : Will the Minister give way?

Mr. Patten : I ask the hon. Gentleman to forgive me for not giving way to him. I am anxious to answer the specific question that was included in his speech before I reach the end of my remarks. As I have said, I listened carefully to the right hon. Member for Sparkbrook, as I always do. He composes his speeches extremely well and, therefore, I listened intently when he said that he felt that the object of replacing the discredited and absurd section 2--I think that that is how he described it, but his words will appear in Hansard tomorrow--was to make an improvement. I welcome the fact that he feels that the result will be an improvement. I think that that sentiment was expressed also by the right hon. and learned Member for Warley, West (Mr. Archer). Having said that, however, both the right hon. Gentleman and the right hon. and learned Gentleman proceeded strongly to criticise the Bill.

It is to be welcomed also that the right hon. Member for Sparkbrook recognised--some of us had doubts whether he did--that it is necessary to have sanctions for harmful disclosure. That, at least, is an advance. The need for sanctions was recognised also by the hon. Member for Caithness and Sutherland (Mr. Maclennan).

The debate rolled on and then we began to understand what Labour Members really thought about the Bill. The veil was lifted as the right hon. Member for Sparkbrook continued to speak. Their thinking was beautifully summed up in a remark made a few moments ago by the hon. Member for Erdington, who spoke of his attitude to official secrets in a free society as "publish and be damned".

Mr. Corbett : I did not say that. Will the Minister give way?

Mr. Patten : Of course.

Mr. Corbett : Let us get this right. Will the Minister accept that I said, "The motto should be publish and be damned' where there is no evidence of harm to real security"?

Mr. Patten : That is the entire message of the Bill. That is exactly what the Bill sets out to do. It has tests of harm throughout each of the clauses.

Mr. Barry Sheerman (Huddersfield) : Withdraw.

Mr. Patten : I see no need to withdraw and I do not intend to do so.

The right hon. Member for Sparkbrook got into a terrible muddle over harmful disclosures of foreign confidences. I shall give a couple of examples in an attempt to clear up the muddle in which he so obviously found himself. First, we take extremely seriously our international obligations to organisations such as NATO. If, for example, we receive from NATO confidential information

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about defence strategy, and we fail to protect it, the confidence of our NATO partners would be damaged and our standing in that organisation would be reduced. As a consequence, our ability to pursue the defence interests of the United Kingdom within NATO would be jeopardised. I will give the right hon. Gentleman a second example. I hope that he is supportive of the work of Trevi, as I think that all members of political parties in western Europe are. If a state that co- operates with us within the Trevi arrangements provided information about the activities of international terrorist organisations, for example, operating in that country and in the United Kingdom and we failed to protect that information, which would be an extremely serious matter, we could not expect that state again to supply us with information. That would obviously jeopardise this country's interests by impairing the effectiveness of the Trevi arrangements through which we combat international terrorism with considerable success. I look to the right hon. Member for Sparkbrook to give the support of the Labour party on these critical issues. The two central issues of principle in the debate have been whether there should be a public interest defence and a defence of prior publication. Those who have spoken in support of a public interest defence have served only to illustrate what my right hon. Friend the Home Secretary said in his splendid opening speech. Those who advocate such a defence are seeking to remedy not the criminal law but the resort of the civil law. Clearly, there is confusion in the minds of the right hon. Member for Sparkbrook and his right hon. and hon. Friends.

The Government do not accept that the criminal law is the right place to balance one Crown servant's perception of the public interest against the specific and serious damage that his disclosure has caused. Incidentally, the definition of a Crown servant, which deeply interested the right hon. Member for Chesterfield (Mr. Benn), is set out in full in clause 12. If that perception and damage were balanced under the criminal law, that would alter the role of Crown servants in this country and their relationship with the Government of the day. A Crown servant or civil servant would become a free agent, responsible for his independent decisions only to the court. That is not the way to maintain an effective and impartial Civil Service, which I still believe is one of the great glories of the British constitution. An effective criminal law must be clear and predictable in its operation and that is its basis in this country. If the House believes that this cannot or should not be done because it wants to leave a gaping loophole through which a Crown servant can leak information to a journalist or anyone else, it will be deciding one of two things--either that this is an area into which the criminal law should not enter and which should be left entirely to the civil law, or that it wants such a muddle and fuzz that the criminal law will be a dead letter the day the Bill is enacted. The Government recognise, as does my right hon. Friend, who has done so much to promote openness in Government since he became Home Secretary-- [Interruption.] The right hon. Member for Sparkbrook is envious because he does not get compliments like that. The Government recognise that there is a place for a Crown servant with a worried conscience to go, but that place is not the front page of a newspaper or a surreptitious dispatch in a brown envelope. That is why we have a clear

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system of access to the head of the Civil Service and, in the case of members of the intelligence and security services, to the staff counsellor.

Some hon. Members have discussed the public interest and the damage done to it as though there were an agreed and precise formulation which a jury had only to balance, but that is not so. We are discussing the criminal law, not the civil law. We cannot agree that the criminal law should admit a defence which claims that only a little harm was done to salve someone's conscience. That is like arguing that only a small murder had been committed to rid the globe of a scoundrel. Such an argument is incompatible with the criminal law.

The prior publication defence is another central point of principle for which we have heard some eloquent pleas, but we have heard no coherent argument why people who disclose information knowing that it will do serious harm to the public interest should not be prosecuted like other people. Yet that is what the prior publication defence, as it has been presented today, amounts to. It is puzzling that those who support our decision to leave it to a jury to decide whether a particular disclosure is harmful also press us to take away such a decision from a jury when there has been prior publication. That sounds suspiciously like special pleading on behalf of the media-- Mr. Dalyell rose--

Mr. Patten : If the hon. Gentleman will forgive me, I referred to his speech earlier when he was not in the Chamber.

My hon. Friend the Member for Wycombe was spot-on in dealing with this issue, as was my hon. Friend the Member for Bristol, East in the course of his notable contribution.

I want now to fulfil my pledge to respond to the question asked by the hon. Member for Caithness and Sutherland about the Justice report. This also allows me to answer the point about the European convention made by the hon. Member for Erdington. I say unequivocally to both hon. Members that there is no evidence and no reason to believe that the Bill as drafted will in any way contravene the European convention on human rights. If we had thought that it would do that, we should not have brought in to the House in its present form.

The European convention on human rights specifically recognises that the protection of official secrets is a legitimate concern for any Government. The Bill has been carefully restricted only to those areas that require the protection of the criminal law. Where disclosure of such information may not always be harmful, specific harm tests have been introduced. All six of my right hon. and hon. Friends who spoke in support of the Bill mentioned those tests. The tests have been ignored by the Opposition and in Committee we shall have to take them through the Bill line by line.

In his marvellous speech, my hon. Friend the Member for Banbury summed up the protections that are available to the media. The House should recognise that we have constructed the Bill in such a way that no media defendant will be convicted except on the clearest evidence that he knew or had good reason to know the harm that he was

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doing. [Interruption.] It was not my article in The Guardian . I am not allowed to accept payment from The Guardian . I write for it gratis.

The Bill deserves the support of all my right hon. and hon. Friends. The Security Service Bill deserved support because it put the Security Service on a statutory footing and provided avenues of redress via a tribunal and commissioner, as my hon. Friend the Member for Torbay (Mr. Allason) said in an intervention, and because it gives all the protection of the European convention on human rights. The present Bill deserves the support of the House because it will remove from the criminal law unnecessary restrictions on freedom of speech and the freedom to publish. It will ensure that secrets which must continue to be protected by the criminal law will be effectively protected. It will place on the statute book clear, reasonable and enforceable legislation. For the first time it will define in most circumstances the harm arising from the unauthorised disclosure of official information. It will leave it to the jury to decide whether or what harm has been done. The Bill will provide a fair and effective law on official secrets. That is surely what the House seeks and the choice before the House is clear.

Opposition speeches, and especially the speech by the right hon. Member for Sparkbrook, were wholly appropriate to this festive, melodramatic and pantomime season. In recent weeks the Opposition have denigrated our security services. They have belittled the importance of national security and forgotten their own record in Government. The Government of which the right hon. Member for Sparkbrook was a member made no attempt to introduce anything remotely approaching the Bill. The Labour party has been so long out of Government that it has forgotten that ministerial responsibility for the safety of the nation is right, and it has so little hope or expectation of office in the future that it no longer shrinks from playing party politics with security matters.

The Opposition's recent record on the Prevention of Terrorism (Temporary Provisions) Bill, the Security Services Bill and now on the Official Secrets Bill is shameful. The Labour party's comments are wholly inaccurate and ill conceived, compared with the Government's proposals which are the sensible way to reform the law. I commend the Bill to the House.

Question put , That the Bill be now read a Second time : The House divided : Ayes 298, Noes 221.

Division No. 27] [10.00 pm

AYES

Alexander, Richard

Allason, Rupert

Amery, Rt Hon Julian

Amess, David

Arnold, Jacques (Gravesham)

Arnold, Tom (Hazel Grove)

Ashby, David

Atkins, Robert

Baldry, Tony

Bellingham, Henry

Benyon, W.

Biffen, Rt Hon John

Blaker, Rt Hon Sir Peter

Bottomley, Peter

Bottomley, Mrs Virginia

Bowis, John

Brandon-Bravo, Martin

Brazier, Julian

Brooke, Rt Hon Peter

Browne, John (Winchester)

Bruce, Ian (Dorset South)

Buck, Sir Antony

Budgen, Nicholas

Burns, Simon

Burt, Alistair

Butcher, John

Butler, Chris

Butterfill, John

Carlisle, John, (Luton N)

Carrington, Matthew

Carttiss, Michael

Cash, William

Chalker, Rt Hon Mrs Lynda

Channon, Rt Hon Paul

Chapman, Sydney

Chope, Christopher

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Column 543

Churchill, Mr

Clark, Hon Alan (Plym'th S'n)

Clark, Sir W. (Croydon S)

Clarke, Rt Hon K. (Rushcliffe)

Conway, Derek

Coombs, Anthony (Wyre F'rest)

Coombs, Simon (Swindon)

Cope, Rt Hon John

Cormack, Patrick

Couchman, James

Cran, James

Critchley, Julian

Curry, David

Davies, Q. (Stamf'd & Spald'g)

Davis, David (Boothferry)

Day, Stephen

Devlin, Tim

Dickens, Geoffrey

Dorrell, Stephen

Douglas-Hamilton, Lord James

Dunn, Bob

Durant, Tony

Dykes, Hugh

Eggar, Tim

Emery, Sir Peter

Evans, David (Welwyn Hatf'd)

Evennett, David

Fallon, Michael

Favell, Tony

Fenner, Dame Peggy

Field, Barry (Isle of Wight)

Fishburn, John Dudley

Fookes, Miss Janet

Forman, Nigel

Forsyth, Michael (Stirling)

Forth, Eric

Fowler, Rt Hon Norman

Fox, Sir Marcus

Franks, Cecil

Freeman, Roger

French, Douglas

Fry, Peter

Gale, Roger

Gardiner, George

Garel-Jones, Tristan

Gill, Christopher

Glyn, Dr Alan

Goodhart, Sir Philip

Goodlad, Alastair

Goodson-Wickes, Dr Charles

Gow, Ian

Gower, Sir Raymond

Grant, Sir Anthony (CambsSW)

Greenway, Harry (Ealing N)

Greenway, John (Ryedale)

Gregory, Conal

Griffiths, Peter (Portsmouth N)

Grist, Ian

Ground, Patrick

Grylls, Michael

Gummer, Rt Hon John Selwyn

Hamilton, Hon Archie (Epsom)

Hamilton, Neil (Tatton)

Hampson, Dr Keith

Hanley, Jeremy

Hargreaves, A. (B'ham H'll Gr')

Hargreaves, Ken (Hyndburn)

Harris, David

Haselhurst, Alan

Hawkins, Christopher

Hayes, Jerry

Hayhoe, Rt Hon Sir Barney

Hayward, Robert

Heathcoat-Amory, David

Heddle, John

Heseltine, Rt Hon Michael

Hicks, Mrs Maureen (Wolv' NE)

Hicks, Robert (Cornwall SE)

Higgins, Rt Hon Terence L.

Hind, Kenneth

Hogg, Hon Douglas (Gr'th'm)

Holt, Richard

Hordern, Sir Peter

Howard, Michael

Howarth, G. (Cannock & B'wd)

Howe, Rt Hon Sir Geoffrey

Howell, Rt Hon David (G'dford)

Howell, Ralph (North Norfolk)

Hughes, Robert G. (Harrow W)

Hunt, David (Wirral W)

Hunt, John (Ravensbourne)

Hurd, Rt Hon Douglas

Irvine, Michael

Jack, Michael

Jackson, Robert

Janman, Tim

Jessel, Toby

Johnson Smith, Sir Geoffrey

Jones, Gwilym (Cardiff N)

Jones, Robert B (Herts W)

Key, Robert

Kilfedder, James

King, Roger (B'ham N'thfield)

King, Rt Hon Tom (Bridgwater)

Kirkhope, Timothy

Knapman, Roger

Knight, Greg (Derby North)

Knight, Dame Jill (Edgbaston)

Knowles, Michael

Knox, David

Lamont, Rt Hon Norman

Lang, Ian

Latham, Michael

Lawrence, Ivan

Lawson, Rt Hon Nigel

Lee, John (Pendle)

Leigh, Edward (Gainsbor'gh)

Lennox-Boyd, Hon Mark

Lightbown, David

Lilley, Peter

Lloyd, Peter (Fareham)

Lord, Michael

Luce, Rt Hon Richard

Lyell, Sir Nicholas

Macfarlane, Sir Neil

MacGregor, Rt Hon John

MacKay, Andrew (E Berkshire)

Maclean, David

McLoughlin, Patrick

McNair-Wilson, Sir Michael

McNair-Wilson, P. (New Forest)

Madel, David

Major, Rt Hon John

Malins, Humfrey

Mans, Keith

Maples, John

Marlow, Tony

Marshall, John (Hendon S)

Marshall, Michael (Arundel)

Martin, David (Portsmouth S)

Maude, Hon Francis

Mawhinney, Dr Brian

Maxwell-Hyslop, Robin

Mayhew, Rt Hon Sir Patrick

Mellor, David

Meyer, Sir Anthony

Miller, Sir Hal

Mills, Iain

Mitchell, Andrew (Gedling)

Mitchell, Sir David

Moate, Roger

Monro, Sir Hector

Montgomery, Sir Fergus

Moore, Rt Hon John

Morris, M (N'hampton S)

Morrison, Sir Charles

Morrison, Rt Hon P. (Chester)

Moss, Malcolm

Moynihan, Hon Colin

Mudd, David

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