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Mr. Archer : The Minister says that I have that wrong. I have always spoken English, however, and that appears to be the effect of ordinary English. A revocation means that he is no longer a person notified. If that is so, he is not a person notified within clause 1(1) and, therefore, does not commit any offence at all even if he discloses information.
That happens to be the effect of the draftsmanship, but I ask whether the Government have really achieved what they set out to achieve in the Bill. Whatever the merits of what they set out to achieve, what I have put forward would be nonsense.
Mr. Gorst : What worries me about the way in which this clause is drafted is that, if Ministers are to be notifiable people, there is nothing which I have read here which says at what moment in time they might be notified. One can envisage a situation in which a Minister is not a notified person when he serves his Government, but when he goes on to the Back Benches and another Government come in, that Government could discover that he knew something that was highly embarrassing and slap a notification on him to keep him quiet. I am sure that my hon. Friend the Minister will assure me that that is not the case. Can we be certain, if it is not the case, that it cannot be used in that way? Is the drafting adequate to provide that protection?
Mr. Heffer : I am confused because of previous discussions that we have had on the question of "a person". The concept of "a person" worries me. In an earlier debate, the Minister said that an ordinary person could go to the tribunal and he should also notify the police. Supposing, however, that that person has his house burgled, believes that it was carried out by the security services and decides to go to the police. He says to the police, "I think it is the security services who have done it." The police say, "Right, we'll find out." When they find out that it is the security services they will not want to know any more. That will be the end of the matter. On one occasion I had my house burgled and the first question that the policeman who came to see me asked was, "Do you think it was political, Mr. Heffer? Have they taken any of your papers?" I knew why he asked that. If it had been political and papers had been taken, he would have said, "It has nothing to do with us." He did not have much to do with it anyway. He merely said, "You're well insured, so you'll be all right."
What do we have in the police service? Special branch are the leg men for the security men. We all know that. We were not born yesterday and we did not fall off a Christmas tree. That is what happens and the Minister must know it.
Column 1116I am a bit worried about this business of "a person". He may well think that he is notified and then he is told he is. What does he do then? I am not certain that he could go to his Member of Parliament. The position is so confusing. It could be cleared up without question by the Government accepting this amendment. It makes the position 100 per cent. clear. The Government would be wise to accept the amendment because it would get rid of many of the arguments--some will continue to apply to other people--for ordinary people. I hope that hon. Members will accept this sound, sensible amendment.
Mr. Aitken My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) has done the Committee a service by tabling this amendment. As we have established from our debate on clause 1, it is a limitation on civil rights to be put in the category in which the doctrine of absolute, lifelong, eternal confidentiality applies. If people are to be designated, the Committee rightly, will want a more precise definition of who is to be designated than the one contained in the Bill.
The Home Secretary has given the impression that this category of persons will be confined more or less to people in his Private Office who have dealings with the Security Service. Could it go much wider than that? Those who work closely with the security services cover a wide category of people. I wonder whether my hon. Friend the Member for Torbay (Mr. Allason) or Chapman Pincher could be covered by this. Clearly, designation must not be unfairly used.
There is a crucial point why this definition is deliberately vague and it must relate to agents in the Security Service. There are two types of agent. There are above-the-line agents, who, in the event of an operation being compromised, cannot be denied because they are known to exist and Ministers must ultimately take responsibility for their existence if an operation is botched, there is a row and the security services' involvement is clear. There are also below-the-line agents who are deniable under all circumstances. They are buried beyond reach of theoretical knowledge of Ministers and people like them.
I cannot see any other justification for having this vagueness about designating people. Why not just leave the definition at Crown servants or Government contractors? The answer must be in this difficult twilight zone of above and below-the-line agents. Again, we get into deep complications. If a below-the-line agent is to be designated, he cannot be a below-the- line agent. He is no longer deniable under all circumstances. In leaving the definition as vague as this to be able to designate below-the-line agents, the Government are compromising and revealing in advance the whole nature of below-the-line agents.
Mr. Aitken : If the Home Secretary or those with authority for the security services want the power to designate as people who must observe the absolute doctrine of confidentiality, those other than Crown servants and Government contractors, they are making a rod for their own backs. That is, unless a totally unfair and arbitrary designation is applied--in which case we want to
Column 1117know about it--in respect of agents. That is why the wording of the Bill is left vague. It is a dangerous hostage to fortune to designate such people, if the point of having them in the first place is that they will always be deniable. Designation will mean that they are no longer deniable. The clause is misguided and needs to be narrowed. That is why I support my hon. Friend's amendment.
Mr. Gorst : Will my hon. Friend address himself to another point that he has almost inadvertently touched upon? I refer to the question whether people can refuse to be designated. If I am an innocent passer-by and witness something that it is inconvenient for me to know, can someone slap a designation notice on me, to keep me quiet?
Mr. Aitken : Such a question is more appropriately addressed to the Minister. However, one ought to ask for the record whether there will be any appeal against designation. Are there any arrangements for fighting unfair designation. As we know, the security services make mistakes in naming people or in placing them in categories, so it is possible that they could wrongly designate someone. There ought to be a procedure for dealing with that.
"the Government proposes that there should be a power for the responsible Minister to designate individuals or groups." Whether such a group could include Members of Parliament we shall never know. I say that because paragraph 48 states :
"The list of persons designated would not, for obvious reasons, be made public."
Mr. Aitken : Whether the word "groups" includes the employees of a security firm, boatmen, or even special boatmen--as the hon. Gentleman once was--it may be convenient to give the power to designate. I believe that the Committee will be wise, in the best interests of security, not to allow power of designation on the scale for which the Bill provides.
Mr. Rees : There are so many cross-threads in the Bill. In our earlier debates today we have, understandably, found ourselves in danger of picking up on points that will arise later, but they are germane to the earlier arguments. We have successfully avoided doing so except on one or two occasions.
In this series of amendments, for example, there looms the matter of public interest--as to whether a person, notified or not, has a right at some pitch to reveal information. That is a point to which we can return, and it applies whether the group is large or small. I wish to make it clear, although I shall not develop the point, that despite all the difficulties involved I still believe that the Franks committee was right and adoption of its
Column 1118recommendation would have saved a lot of bother in this Committee. Franks said that the only people criminally vulnerable under new secrets legislation should be those who reveal information classified as secret and above. That would have a bearing on what we are discussing, but I will save my fire until later.
The amendment is intended to limit the definition of notified persons. We must, of course, be clear about who is included in the wider group of persons, and I shall put my mind to that shortly. But what about Ministers? As a junior Minister, under the Mountbatten reforms, like the hon. and learned Member for Colchester, North (Sir A. Buck) at a later date, I was Army Minister and RAF Minister. I cannot recall signing a bit of paper or being nominated by anyone, but as RAF Minister--which is what I was, although changes had taken place--I received information that I would not and will never discuss with anyone about the targeting of the RAF at the time. Under the Franks recommendations such material is secret and above, and in any case who would want to reveal it?
Sir Antony Buck (Colchester, North) : For the sake of accuracy, may I point out that although I was a Member of Parliament for an Army constituency, I was Minister for the Royal Navy at the relevant time?
I was a service man. The point that I am making is that no one designated or nominated me so far as I recall, but I remember--as I imagine the hon. and learned Gentleman does--rather pleasant occasions when senior Army officers, and later senior RAF officers, came in to introduce themselves. We talked about their work and ended up discussing such subjects as what happened during the war. I remember a man coming to talk to me about the need to keep papers secure and not leave them lying about, but we were aware of what to do without being told.
The Minister may tell me that my question is dealt with in clause 7, which some of us have been looking at but do not entirely understand. However, I should like to know how long the notification lasts. Will there be a day when someone writes to say, "You are no longer a notified person"? We built into the Franks recommendations that papers in every Department--heaven knows how many thousands of MOD papers are secret and above, but there are not so many in the Department of Education--would be reclassified from time to time. When they fell below the "secret and above" classification in two, three, four or 10 years' time, they would not come under the criminal sanctions recommended in the Franks report. The time factor, therefore, was dealt with through the reclassification of documents. My question is, how does the time factor come into this legislation? A problem is raised for the group of people--Ministers, ex-Ministers or more usually ex-Prime Ministers--who write long memoirs, in some cases as many as nine volumes, breaking the Official Secrets Act on almost every page. The Prime Ministers concerned have probably never signed a bit of paper, and in any case they are allowed to get away with it because it is nonsense to prevent information from being revealed 20 or 30 years after the event. How do the Government intend to deal with the question of timing? Although we have attempted to narrow the definition in the clause, we are still left with Ministers under the heading
Column 1119of Crown servants. Who will have the responsibility of making the Prime Minister a notified person? I presume that other Ministers will be notified by the Prime Minister. Who will administer the notification to the Prime Minister? I am not joking about this. Perhaps Prime Ministers will notify themselves that they are notified persons. What is the procedure for that? I fully appreciate that one or two people in the Private Office and possibly someone who does the typing would have to be secure. They will have to be notified persons. A small group of people would not be notified and it will not be difficult for the Department to decide--
It being Ten o'clock, The Chairman-- left the Chair to report progress and ask leave to sit again.
Committee report Progress.
That, at this day's sitting, the Official Secrets Bill may be proceeded with, though opposed, until any hour.-- [Mr. Alan Howarth.]
Bill again considered in Committee.
Question again proposed, That the amendment be made.
Mr. Rees : I should like to emphasise what the hon. Member for Thanet, South (Mr. Aitken) said about agents other than what I suppose are called contract agents who are not full-time with MI5. At this time no one likes to talk about this sort of thing, but we have to be sure about how such people are dealt with under the notification process. If someone is taken on, either by a security firm or to act for MI5 under certain conditions, does that person become notified and how long does the notification last? I ask that because--foolishly, and not altogether by design--I found myself on a programme discussing security. I thought that the programme would last an hour, but it went on for half the night. It was called "After Dark" and had no time limit.
I wrote to the Home Secretary because a chap called Gary Murray on the programme made the most astonishing allegations about being trained by MI5, saying that people from private security firms were trained on Ministry of Defence premises. Then he made allegations about certain prominent cases in which my hon. Friend the hon. Member for Linlithgow (Mr. Dalyell) had been involved. True or false, that chap was breaking section 2 of the Official Secrets Act by his allegations. Unless he becomes a notified person, he will certainly break the law under the proposed legislation. I have no strong views about that, but if I had I would make them known in the later debate on amendments about the public interest.
I emphasise that we have to be clear about how such people are covered. It will be interesting to note to what degree the measures are used. In that respect, the other secret service--the SIS--is not covered because, rightly or wrongly, it engages in activities abroad. I want to be assured that there are no circumstances in which state security services other than MI5 operate in this country. My last heading is journalists.
Column 1120Foreign Secretary. Wires would be crossed if such a case arose. Some action would be carried out at the request of MI6, but I want to be sure what class of security officer would be involved in this notification procedure.
I have just been handed a copy of a letter that the Home Secretary wrote to me.
Mr. Rees : I did not know that my hon. Friend had a copy of that letter. In it the Home Secretary denies the remarks about the security services, although he does so in the usual way, as I did myself many times, saying that it is Government practice not to confirm or deny allegations about operations but
"I can assure you, with regard to Mr. Murray's allegations, that I am now satisfied that no further investigations are warranted." That reinforces the view that we need to be sure whether those people are covered in this process. I hope that the Minister of State will clarify that.
This debate in Committee will continue a great deal longer and I hope that we do not end up with a guillotine. It is important that we use the time that the Government will provide, and that the Opposition want, to do what was not done with the official secrets legislation between 1889 and 1911 and on to 1920. It was always shoved through late at night because there was a scare. We must get it right this time. One of the most important points to clarify is which group of people will be notified that they are covered by this legislation.
Mr. Dalyell : Although I suspect that it would be in order, the case to which my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees) referred--that of the murdered Shrewsbury rose grower, Hilda Murrell- -might be better dealt with in respect of a different amendment on another day, so I shall not pursue that.
However, my right hon. Friend will forgive me if I say that he raises a real problem of the authority of who is to say what is to be done in Cabinet. He referred to prime ministerial memoirs. I understand that, in the 1968-69 period of the Labour Cabinet, there was a lengthy discussion about the note-taking of Mrs. Castle, Mr. Jenkins and Mr. Crosland. The Prime Minister came up with the view that the party leader--the Prime Minister himself--should be able to read through the memoirs of Cabinet colleagues before they were published.
To illustrate the difficulty--Mr. Crosland told me that he said it, but others have claimed credit for doing so--they turned round in unison and said, "Harold, would you allow your memoirs to be vetted by Hugh Gaitskell?" That was the end of that argument. In no way would Harold Wilson have permitted his memoirs to be vetted by Hugh Gaitskell. [Interruption.] Hugh Gaitskell was certainly dead, but it was a hypothetical question. The answer, nevertheless, would have been a very big "nyet". I digress, but it encapsulates a real problem.
I am sure that the hon. Member for Aldridge-Brownhills (Mr. Shepherd) will agree that this is not the most momentous amendment, but for some of us it is something of a litmus test. If the Government were doing what many Opposition Members and some Conservative
Column 1121Members want, there would be little or no difficulty about accepting the wording suggested by the hon. Member for
Time is short, so I shall content myself with two questions on this amendment. The first was referred to by the hon. Member for Aldridge- Brownhills. What exactly is the position of the D notice committee? The Minister may say, "Don't worry about it ; it's obvious." It is not obvious from the Bill. The position of the D notice committee is left in limbo by the wording of the Bill. In the same breath, I ask, what is the position of the Comptroller and Auditor General? My hon. Friend the Member for Workington (Mr. Campbell-Savours) is a member of the Public Accounts Committee. I, too, have served on that Committee. The role of the Comptroller and Auditor General is absolutely crucial, but, as I understand it, the wording of the Bill does not make that clear. If there can be clarification, let the Minister give it.
Secondly, the House of Commons is entitled to know that advice was given on this subject by the Security Commission. Were Lord Griffiths, General Sir Hugh Beach and Philip Allen invited to give advice? [Interruption.] My hon. Friend the Member for Birmingham, Erdington (Mr. Corbett) says no. He may be right. In that case, why were they not invited to give their advice? It is important to know what they think. They are people of considerable weight, and I want to know whether they gave advice on the subject. If the Government say that they cannot reveal whether such advice was given to them, at least it is legitimate to ask what the Security Commission said to Ministers.
Mr. Andrew F. Bennett : May I press the Minister on the point that was raised by the hon. Member for Hendon, North (Mr. Gorst) : will this provision be retrospective? If people are told when they are appointed that they are subject to the provision, that is one thing. It is a very different thing if they are notified later that there will be retrospective notification, particularly if they have started to ask awkward questions.
The White Paper limits the scope of the Bill. Will the Minister give us some guidance about what will happen when defence contractors are involved in nuclear work, or in other high security work, and health and safety problems or problems over unfair dismissal arise? Does the Minister envisage that an absolute ban will be imposed if it becomes inconvenient for the Government when somebody raises a health and safety issue or complains about unfair dismissal? As the Bill is drafted, there is a temptation to brush aside awkward matters by suddenly slapping a notice on an individual. As I read the Bill, there is no limit on who can have a notice slapped on them if they appear to have information that might be embarrassing to the Government and that the Government can claim has security implications.
Ms. Abbott : In the run-up to the White Paper there was much talk about the possibility of the Bill containing ministerial certificates on information. There were extensive arguments in the media that ministerial certificates on information, whereby pieces of information would be designated, would open up the possibility of arbitrary behaviour by Ministers. Under clause 1 we will have ministerial certificates on people. The self-same
Column 1122arguments that were marshalled against ministerial certificates on information apply to ministerial certificates on individuals. Will people have a right of appeal against designation? Subsections (6) and (7) deal with the procedure for effecting and revoking designation. Will a designated individual be able to petition for revocation, or will he have to wait until the Minister sees fit to revoke the designation?
The clause refers to persons being designated by virtue of being in possession of information. Ministers are technically in possession of a great deal of information which they never read. Would it be a defence for an ex-Minister to argue that, although he might have been in possession of information, he did not read it at the time? Ministerial certification of information has been argued against, but there are more problems when it is proposed for individuals. There are many grey areas which I hope the Minister will clear up.
Mr. Campbell-Savours : I can curtail my comments substantially if the Minister will intervene to give me an undertaking; otherwise, I shall have to proceed, perhaps at length, with the aid of an article in The Observer some eight months ago. Can the Minister tell us, in an intervention, whether a journalist could be subject to subsection (1)(b)? Could a journalist be "a person notified"?
Mr. Campbell-Savours : I shall move to the second point, the position of members of the Public Accounts Committee. During the course of our hearings when we take evidence we may examine defence officials on military equipment, in particular telecommunications equipment which has an intelligence connection. In other circumstances it might have been the Zircon project. Does the fact that I am a member of a Committee which might have to take evidence in private on a project similar to Zircon mean that I could be subject to notification under subsection (1) (b) and defined as "a person notified"?
Mr. Corbett : This is a fascinating debate. I hope that the Minister will reply particularly to the point about the D notice committee. For the sake of argument we will say that a designated person can be anyone the Secretary of State chooses. The power in the Bill to designate a person seems to make the D notice committee redundant, given the protections which the Government want to build into the legislation.
My hon. Friend the Member for Hackney, North and Stoke Newington (Ms. Abbott) raised the important question about an appeal or a petition against notification when a person has been designated. I would be interested to know whether the Minister will provide those avenues.
Mr. Heffer : I am a simple bloke and when I read the words "a person notified", I assumed that notification was not the same as designation. Perhaps we had better clear up what notification means because it can be a broad term. Designation means that one pinpoints a person or group, but what does notification mean? I do not know, and that is why I raised that question originally.
Column 1123interesting point and, without becoming involved in a great semantic argument, perhaps the Minister will explain.
Our debate revolves around the question of who is a person or persons. We have little guidance on this. It is another example of the Home Secretary saying one thing in the White Paper, a second thing in the press release, a third thing at the beginning of the debate on the White Paper and, lo and behold, a fourth and contradictory thing when we come to debate the Bill.
Paragraph 45 of the White Paper, which follows on a discussion about the lifelong duty of confidentiality, says :
"Those issues have been discussed in terms of the security and intelligence services'."
We all know where we are with that. It continues :
"But the arguments apply not only to actual members and former members of the services but also to those who work closely in support of or who are in frequent contact with the services, such as certain members of the armed forces who provide technical support for the services, or officials in specified posts in certain Departments who deal with the services on a regular basis as part of their normal duties."
As has been asked already, does that apply to private security contractors? If it does, the Bill is far wider than was suggested in the White Paper, but the implication is that it does.
Let us imagine that the security in a certain building in Gower street has been privatised in pursuance of the Government's intention to privatise or shut everything in sight. Let us suppose that security there is handed over to Securicor, in which one of the Minister's hon. Friends has an interest, but that is by the by. Clearly, it would be nonsense, in view of the ambitions of clause 1, not to notify the members of that private security firm that they were being fingered under the provisions of the Bill.
We are also left with the point raised by my right hon. and learned Friend the Member for Warley, West (Mr. Archer) and other hon. Members about other people. What will be the position of Ministers? It is clear in the Bill that when a Minister is in office, he or she will be a notified or designated person. That is clear.
Mr. Heffer : It is not. The White Paper speaks about designation, whereas the Bill talks about notification. I left school at 14, but I know that there is a distinction between the two words. We should be clear about that because I do not trust people who draft proposals in a Bill differently from a White Paper unless we know what is meant and why the words have been changed.
We have established that when in office a Minister is covered, and we assume from that that when the Minister leaves office, he or she will be sent a note saying that he or she is no longer a notified person. Suppose that someone was a Minister and either is or is not still a Member of this House that introduces other matters because we can always fall back on parliamentary privilege and the two
Column 1124things are possible. What happens if he is told by a member or former member of the security and intelligence services something that happened during his period as a Minister of which he was totally unaware then and which at the time was illegal? What can that person do? Can that person tell someone? No doubt the Minister of State will remind us that that person can go to the tribunal or to the police and he has said that they can, in safety, go to a solicitor but we question that.
More to the point, where there is some great iniquity and something illegal happened, can that person telephone Chapman Pincher and say, "Oi, Harry, have I got a story for you. Can you get it in the Daily Express tomorrow?" If that happens, who carries the can?
Mr. Archer rose --
We established in an earlier debate that the messenger will go to chokey-- to gaol--and that the member or former member of the service who gave the information will go to gaol, but what about the editor who prints the information in those circumstances? What about the former Minister who passed on the information? Where does it stop?
Mr. Archer : Does my hon. Friend agree that it appears that no offence would have been committed in that instance because it will not be information in his possession in the course of his work while the notification was in force? If that relieves my hon. Friend's mind, is it not even odder that if it were something that he had learned while a Minister, he would have been covered, but if it is something that he learns accidentally later, or which slipped his memory but which he re-learns, apparently no offence has been committed?
Mr. Corbett : My right hon. and learned Friend has noticed a most interesting point. There is another flaw in the clause because, as my right hon. and learned Friend has said, it all hangs on the fact that the former Minister picked up the information in the course of his work while the notification is or was in force. That is an extremely apposite point.
Will the Minister of State say, "You have all been guessing that at some time after that person ceases to be a Minister, the notification will be revoked, but I have to tell you that it will not be revoked in the case of a former Minister because," lo and behold, "we are now going to extend the principle of the lifelong duty of confidentiality to anyone who has served as a Minister and been notified under the provisions."? That is possible under the Bill although I may be told that is wrong and although it could be perfectly logical to do that, I do not for a moment want it to happen.
The Government cannot have it both ways, but they can try to have it both ways. One could generously say, "This is clearly a drafting fault and it is not the Government's intention to pin this narrowly on the words while the notification is or was in force' " and that the Government meant it to be wider to cover the problems that I have put to the Minister of State.
Although the White Paper widened the scope of what was proposed outside direct members of the security and intelligence services, it added comments about others who have frequent contact with members of the service. Will
Column 1125the Minister let the Committee know whether it is the Government's intention that notification would be applied only to those individuals and groups of people referred to in paragraph 45 of the White Paper? I anticipate that the answer will be no. I hope that the Minister will tell us. One reading of the Bill is that it could be applied to any person who has had any fairly regular contact with the security or intelligence services. I want to find out from the Minister how far it goes.
Do the Government intend to argue that an employee of a firm of contractors called in to refurbish the office of Mr. McColl, the new 56-year-old head of MI5, must be notified in the course of carrying out the work because of the likelihood, however remote, that they could trip across information that may put the state at risk? If that is so, do the Government believe that MI5 staff would be so careless as to leave classified or highly classified information lying around an office while it is being refurbished? I do not believe that. If that is flickering across the Minister's mind, he has a low opinion of senior personnel in the security and intelligence services. 10.30 pm
Does the Minister envisage that there could be circumstances where Mr. McColl goes to the gents, happens to meet a colleague and begins to discuss some highly secret security officer while a contract plumber is changing a tap? How far do the Government intend to extend the list of persons whom they want to notify under the Bill? If one takes the Government's stand, it would be sensible to notify the plumber, painter, carpenter and electrician, because once they get inside buildings of that sort, given that the Government think that the staff are so careless as to flick secrets all over the place, who knows what they may find?
The Minister became excited the other night when he recalled that my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) had said :
"In truth since the war, MI5 has been one of the worst and most ridiculed security services in the western Alliance".--[ Official Report, 15 December 1988 ; Vol. 143, c. 1124.]
He said again tonight that that view is shameful. Based upon this clause, that seems to be the view of the Minister and the Government. The Government are seeking powers that it would be possible to extend to anyone with a brush or a hammer in their hands who gets anywhere near the security and intelligence services. They are saying that they must be gagged for life, presumably because it is the view of the Home Secretary and his colleagues that those in the services are casual and careless about what they do with secret papers or are indifferent about whether their discussions on such matters come within earshot of outsiders. We do not take that view.
We are still left with a conundrum : how far do the Government intend the notification to go? It may be argued that the Government want the power to stretch notification beyond those types of people mentioned in paragraph 45 of the White Paper.
Perhaps the Minister will turn his mind to people who have more regular contact with the security services than itinerant contractors refurbishing offices or painting buildings. What about the squads of cleaners who enter buildings at 5 am to get them shiny and in working order for when the spooks and spies arrive later in the day at more convenient hours to do their work? What happens if the catering has been privatised? Catering staff would be in regular contact with members of the services. Is it intended