House of Commons Hansard Debates for 25 Jan 1989

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to notify them? It appears that the Government can wrap this catch-all mantle around the neck of anyone they choose. That is unacceptable. It contrasts and collides dramatically and noisily with their claims that the Bill narrows the scope of official secrecy. I hope the Minister will be able to satisfy me about these things ; I await his reply with bated breath.

Mr. John Patten : I hope that I can satisfy the hon. Member for Birmingham, Erdington (Mr. Corbett) and my hon. Friends the Members for Thanet, South (Mr. Aitken) and for Aldridge-Brownhills (Mr. Shepherd). The debate gives me the chance to clear up some misconceptions about notification generally. I shall deal with specific questions when appropriate, but many of the questions asked have been general.

The amendments would place a restriction on a power that is already strictly limited. I will tell the Committee the exact limitations on the power in the Bill. The amendments would mean that certain people who work with the security and intelligence services, and who do not fall within the definitions of Crown servant or Government contractor as set out in the Bill, could not be placed under the same liability as members of the services, although they have very much the same knowledge as those members.

I want to impress on the Committee how limited this power is. The occasional fanciful story has appeared in the press, although one can sometimes believe what one reads there. The hon. Member for Workington (Mr. Campbell-Savours) and one or two other hon. Members have asked about the power to notify journalists, Members of this House, or anyone else. The criteria in the relevant subsection are clear and narrow.

First, a person cannot be notified unless his work is connected with the security and intelligence services. That does not mean a person with an interest in them--an interest which a writer, journalist or broadcaster might quite properly have. It is not enough to be professionally interested in the services--there must be some direct connection. This means that Ministers can notify only those who have some official standing in relation to the security services. There is no power to notify those who work as journalists, or as Members of this House, or as anything else, if they do not have that standing.

Secondly, the nature of the person's work must also be of such a kind that the interests of national security require that he be subject to the same offence as members of the services. The word "require" is deliberately chosen. It means that a Minister has no power to notify someone merely because he considers it desirable or convenient to notify him. In other words, national security interests must mean that notification is applied.

Mr. Richard Shepherd : I am grateful for that clarification. I should like to know what are the relevant lines and clauses of the Bill to which my hon. Friend is referring so that I may be assured of this.

Mr. Patten : Clause 1 sets out those people who can be notified, and we see here the notification powers set out in clause 1 to which I referred. In subsection (6) we shall see what applies.

Mr. Dalyell : Clause 1(6) says that a person may be notified if, "in the Minister's opinion, the work is or includes work connected with the security and intelligence services and the interests of national security require"

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an absolute bar on disclosure. What safeguard, if any, exists to ensure that notification is not abused to cover situations quite outside the examples cited--that is, to notify someone whose job has made him or her a witness to an incident involving the security services? The Gibraltar example springs to mind.

Is the test that it is the Minister's opinion that the work is connected with the services? And is the Minister's opinion subject to judicial review if unreasonably exercised? Should there not be some form of appeal against abuse? Otherwise persons who are notified cannot mention the fact to anyone without consulting and creating an offence.

The Minister cannot complain about arbitrary notification without committing the absolute offence to which he has been made the subject.

Mr. Patten : The hon. Member has made a number of points. In answer to one : no, the matter is not open to judicial review. But in answer to the point raised by both the hon. Member for Linlithgow (Mr. Dalyell) and my hon. Friend the Member for Aldridge-Brownhills, we can see the protections in clause 1(6), because

"the work undertaken by the person in question is or includes work connected with the security and intelligence services"

Mr. Shepherd : "In the Minister's opinion".

Mr. Patten : Indeed, in the Minister's opinion, if the Minister's opinion is that the nature of the work is such that considerations of security require that he be subject to the provisions of that subsection. The word "require" is deliberate.

Mr. Campbell-Savours : The intervention of the hon. Member for Aldridge-Brownhills (Mr. Shepherd) was important. He stressed the words "in the Minister's opinion". The Minister's opinion may change. It may be that the interpretation placed on the words

"or includes work connected with the security services" may change from the relationship outlined by the Minister, which included only a professional relationship, to another kind of relationship which could perhaps include journalists. How can we be sure that the Minister's opinion might not change in the way that I am suggesting?

Mr. Patten : Looking at the words on the page, I do not understand how the Minister's opinion could be construed as involving the notification of someone who happens to have an interest, passing or permanent, in the work of the security services. The work must be undertaken by the person in question and must involve or include work in connection with the security services. That is a point that I have made on three occasions.

Perhaps some of these points would become clearer if I gave some illustrations to the Committee of the sorts of people who would be notified.

Mr. Shepherd : This is the whole point of our emphasis on the words "in the Minister's opinion". In my introduction we cited the different views that have been passed by my right hon. Friend the Home Secretary and my hon. Friend the Minister of State himself--the view that they were essentially Crown servants. That is why we tried to limit it to that restriction so that there would be no confusion. Now we have another "in my view" which is

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justifying a wider clause. That is our anxiety--that large sections could be designated on the Minister's understanding, with no appeal or ability to argue that the wrong person has been notified.

Mr. Patten : In the end, notification--and the power of notification --is an operational decision and would always be an operational decision.

Mr. Shepherd : Without judicial review.

Mr. Patten : Yes, without judicial review. I have already said that twice to the Committee.

I think that my hon. Friend's anxiety and that of Opposition Members might be satisfied if I outlined to the Committee the sort of people who might be notified.

Sir Barney Hayhoe (Brentford and Isleworth) : What happens if the Minister makes a mistake? My hon. Friend seems to be arguing that Ministers are infallible. There must be a new breed of Ministers known only to the Home Office if that is his argument. If a Minister makes a mistake, who will review that decision if it is not available for judicial review?

10.45 pm

Mr. Patten : Operational decisions on what should happen in the Security Service, including the power of notification for those who are closely connected with the service, must in the end be determined by ministerial decision. It is an operational decision by the Minister.

Several Hon. Members rose --

Mr. Patten : I hope that hon. Members will not intervene while I set out the types of people who will be notified. I wish to give the Committee as clear an indication as possible of how, on the basis of the present situation, the notification power will be used. I want to be helpful, but I cannot and will not reveal operational secrets. [Interruption.] I hope that hon. Members would not expect me to do so. It may be a matter of jocularity to some, but it is a serious issue to others, especially those in the service.

We propose to notify some carefully selected and mainly senior officials and members of the armed forces working in a few Government Departments because they are involved in assessing and deploying intelligence information of the greatest sensitivity and in assisting Ministers in the exercise of their responsibilities for the security and intelligence services.

We propose also to notify some, mainly Crown servants, who work on providing the services with regular professional support for their operations and activities. We will also notify those members of the armed forces who undertake technical communications and work alongside the services in various parts of the world. We also propose to notify those with particular responsibilities or public duties in respect of the services, including the Ministers. That answers the point that the right hon. Member for Morley and Leeds, South (Mr. Rees) raised.

It will be clear from what I have said that notification will not apply to the vast majority of people who are provided with information by the security and intelligence services as part of their work or who may be aware of particular aspects of the work of the services or who may

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from time to time give support and assistance to them. Of course, any unauthorised disclosures by such people will, for the first time, be subject to a test of harm.

Mr. Richard Shepherd : Part of the purpose of this debate was to identify those who might be notified. The amendment would leave out "a person" and insert

"a Crown servant or government contractor."

We were trying to identify, outside that range, who else would be notified. It was designed to meet the classification or definition that Ministers had given. We thought we were being helpful.

Mr. Patten : I was coming to that point. I am going through the whole argument, from the beginning to the end of the story, in view of the concern that has been expressed on both sides of the Committee.

Among the small group with particular responsibilities or public duties in respect of the services, there are some people who, under this series of amendments, we would not be able to notify. They are holders of public offices which involve a detailed knowledge of the service. Such people must have a close and detailed knowledge of the workings of the security and intelligence services to discharge their functions. Furthermore, they stand in a position of trust, such as the chairman and members of the Security Commission. Furthermore, they stand in a considerable position of trust in society. We have no expectation that any of those eminent persons would ever break that trust, but, as a matter of principle and of consistency, I believe that their liability should be the same as that of members of the services. If my hon. Friend's amendments were put through, as the Bill stands now we could not notify such people.

Another important point was raised about notification.

Mr. Archer : Will the hon. Gentleman give way?

Mr. Patten : I shall be coming to the right hon. and learned Gentleman's point in a moment, but I would like to make some progress. I have given way a great deal this evening. I would like to deploy the arguments to the Committee and then, as it is a Committee, hon. Members can return again and again to the debates if they wish. An interesting linked point was made by the hon. Member for Hackney, North and Stoke Newington-- an even longer title for a constituency than mine--about whether a person could actually refuse notification. I reassure the hon. Lady that every effort will be made to ensure that no civil servant is asked to fill, against his or her will, a post carrying notification. It is hardly in the public interest or in the interest of the efficiency of the Civil Service that a sensitive post should be held by a disaffected or discontented person. Mr. Maclennan rose --

Ms. Abbott rose --

Mr. Patten : I shall give way to the hon. Lady to whose point I was referring.

Ms. Abbott : Could I ask two linked points? First, can a person appeal against notification? Secondly, as there is provision in this clause for revocation of notification, can a person petition for revocation or is it entirely at the whim of the Minister whether he chooses to do so?

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Mr Patten : There is no need to appeal against revocation, because, if someone is unwilling to accept a job involving notification, it would be bizarre to suggest that someone should be notified.

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

Mr. Maclennan : In answer to the question of the hon. Member for Hackney, North and Stoke Newington (Ms. Abbott), the Minister said that a person would not be required to take a post carrying notification. If I have read the Bill correctly, it does not give the Minister powers to allow him to designate posts as notifiable posts. The Bill refers to the notification of individuals, and the Minister will be required to look at the position of individuals.

Mr. Patten : If anyone within the Civil Service is disatisfied, he has the well-laid-down lines of appeal right up to and including the head of the Civil Service.

The right hon. Member for Morley and Leeds, South mentioned the position of Ministers, which we need to consider. I assure the right hon. Gentleman that proper arrangements will be made within the Government to notify the relevant Ministers under the requirements of this provision, about which we foresee no difficulty.

Mr. Terence L. Higgins (Worthing) : Can we be clear on the question whether someone can refuse to be notified, as this would obviously have important implications if that person was already in possession of information? Can he simply say, "I refuse to be notified"? It would be difficult, if it were possible to notify someone after the event, to make the effect of the notification retrospective.

Mr. Patten : That person could not do that while he was in a position of some trust, where he had access to secret information. If, on the other hand, it was someone who was not a Crown servant who was being brought into notification, of course, he could refuse to be notified.

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

Mr. Higgins : Presumably, he could refuse to be notified and resign, or whatever the appropriate action might be.

Mr. Patten : Or that person could be transferred to another post or do something else. We all get faced with those rough decisions sometimes.

The right hon. Member for Morley and Leeds, South raised an important point about the time factor for Ministers, which I must answer. A former Minister who wished to reveal information about security and intelligence, given to him while he or she was a notified person--I must stress that there is no retrospective notification--would of course need to seek authority in the normal way, if he or she wished to make available that information.

Mr. Allason : On that point, would my hon. Friend give way?

Mr. Patten : I wonder if my hon. Friend would forgive me, because I must answer other points which have been raised in the debate.

Mr. Allason : Will my hon. Friend give way on that point?

Mr. Patten : I shall give way in a moment. I shall just deal with the point raised by the hon. Member for Linlithgow, which is in many ways linked, because it deals

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with non-Crown servants. I can reassure the hon. Gentleman that the Security Commission is aware of our proposals. As he generously said, it would not be right for me to go into further detail on that issue.

Mr. Allason : Does the limitation on retrospective notification apply only to Ministers? Is it impossible to notify retrospectively civil servants and other Crown servants who would otherwise qualify?

Mr. Patten : My hon. Friend is right. Such notification would be impossible.

The existence of the D notice committee and its usefulness are not affected by the Bill. Having said that, I shall respond to the right hon. and learned Member for Warley, West (Mr. Archer) and the right hon. Member for Morley and Leeds, South on notification. Clause 1 refers to :

"A person who is or has been notified."

That is the force which makes it possible for someone to be notified by statute, and that is the period for which he is notified.

Mr. Campbell-Savours : The Bill does not say that.

Mr. Patten : Clause 1 refers to :

"A person who is or has been notified."

Those words appear in the first lines of the Bill. I think that I have read that correctly. All the best novels contain the advice "Read on", and that is what the hon. Gentleman should do. I understand that the right hon. Member for Morley and Leeds, South accepts that the Bill deals with the issue that the hon. Member for Workington (Mr. Campbell-Savours) has raised.

My hon. Friend the Member for Hendon, North (Mr. Gorst) is concerned about the position of a Minister who retires and then discovers something heinous or awful and wishes to talk about it. My hon. Friend wishes to know whether the notification procedure will be a possibility retrospectively. The answer is no. A retired Minister will have to abide by the duty of silence over the period when

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he was in office and during which he gathered information. If he discovered something after his retirement, he would not be subject to retrospective notification.

Mr. Gorst : I am grateful to my hon. Friend the Minister for that answer, but I still have a nagging fear. Let us suppose that a Minister in office has not been a notified person and someone says, "You realise that Bloggs may find out about what happened three weeks ago, so we shall make him a notified person."

Mr. Patten : I do not think that retrospective notification is possible inside or outside of office. Retrospection is not possible, whether someone is in office or out of office, and not notification is permitted on a passerby.

I hope that the fuller explanation that I have given of the scope and intended use of the powers will reassure the Committee. I hope that on that basis there will be a preparedness to withdraw the amendments.

Several Hon. Members : Will the Minister give way?

The First Deputy Chairman of Ways and Means (Sir Paul Dean) : Order. I think that the Minister has sat down.

Mr. Campbell-Savours : On a point of order, Sir Paul. The Minister said that he would respond to all the issues that were raised by my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees), but he has not referred to the sub-tier, about which the hon. Member for Thanet, South (Mr. Aitken) spoke, of those who work for the Security Service, but not directly.

The First Deputy Chairman : The Minister has resumed his place. Accordingly, I call Mr. Archer.

Mr. Archer rose --

Mr. Patten : Further to the point of order, Sir Paul. I think that the hon. Member for Workington (Mr. Campbell-Savours) has done me an injustice. When he reads Hansard, I think that he will find that I dealt with the "sub-tier" to which he has referred.

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Mr. Archer : It is a late hour and I do not wish to delay the Committee for long.

The Minister has reminded us that we are discussing a serious matter ; he rebuked some hon. Members for failing to treat it as such. He then said that it is an operational matter, and repeated that two or three times. I am not clear what follows from it being an operational matter, but criminal liability rests on those to whom the term applies. That is certainly a serious matter. Those notified will be people who, in the Minister's opinion, fall within the category of people liable to notification. It will not do for the Minister to say that the Bill has safeguards. He says that one has only to refer to subsection (6), which identifies who is liable for notification--but in the Minister's opinion. There is no appeal against the Minister's opinion, and there is no one to whom the Minister need refer. 11 pm

The Minister was kind enough to give the Committee examples of the people he has in mind for notification, and of those who will not be notified. But we all have experience of legislation by undertaking. Again and again, legislation has been put on the statute book, and two or three years later, when a situation arises, it is said, "But an undertaking was given in the debate." There follows an argument about what was meant by that undertaking, who gave it, and in what circumstances. No one is in a position to adjudicate. Legislation by undertaking is unsatisfactory.

If the Bill's existing text enters the statute book, then if, in the Minister's opinion, someone is liable to notification, no one will be able to challenge his opinion. The amendments deal with that situation, and the Minister's answers are not enough.

Mr. Dalyell : The hour is late, and no one who has taken part in the debate can say that there has been any irrelevance. However, deep and increasing worry has been expressed about the substance of the ministerial replies. If I do the hon. Gentleman an injustice, he will tell me. Has he answered at any point in the last half-hour the question raised by my right hon. and learned Friend the Member for Warley, West (Mr. Archer)? How can a ministerial opinion that is thought to be unreasonable be challenged? To those of us who have been listening intently, it seems that there is, in the Minister's opinion, a blanket, cover-all phrase embracing anything that the Government of the day want. This is a serious matter of liberty and freedom. If I am wrong in my interpretation, the Minister will tell me. I fear that I am not.

Mr. Maclennan : I am, more than ever, mystified by the Minister's reply to the hon. Member for Aldridge-Brownhills (Mr. Shepherd). We have been trying to clarify the people who will be notified. The Minister says that it is all clearly set out in clause 1. Alas, it is not. The Minister referred to subsection (6), which states : "such a notice may be served if, in the Minister's opinion, the work undertaken by the person in question is or includes work connected with the security and intelligence services"

and so on. Are those people an objective class of individuals, or are they people subjectively defined by any Minister, at any given time?

The Minister sought to illustrate his argument by citing the categories that he or his right hon. Friend the Secretary of State for the Home Department might have in mind as the subject of notification. But the Bill, as I read it, does

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not give the Minister power to designate categories of people. The power applies only to individuals. If the Minister is to exercise that power appropriately, I do not see how he can deal with the matter, even by reference to categories, without misleading the Committee.

If the Minister is of the opinion that the work of a tailor or dentist or someone in the Security Service is connected with the Security Service, it will be open to him so to decide.

Mr. Hurd indicated dissent.

Mr. Maclennan : The Home Secretary shakes his head. But who is to challenge the Home Secretary's judgment if there is disagreement that the Security Service man's tailor or dentist is not a suitable person to be notified? Such a power is open to gross abuse. The Committee must be given greater reassurance.

The amendment is extremely important, because in the Bill the Minister is taking powers to nominate individuals as being potentially guilty of an absolute offence if they disclose information. That is creating crime by fiat and is entirely unacceptable.

Mr. Campbell-Savours : I should like to dwell on a point that I raised earlier. The words "in the Minister's opinion" give him immense powers. He, as a Minister, might well make the right decisions having formed the right opinion, but the question is what might happen in changed political circumstances. At some stage in the future, his post might be occupied by someone with a very different view of what constitutes reasonable action. The Cabinet might be comprised of people holding such a view. They might say that a journalist or a member of a Select Committee should be notified. [Laughter.] The Minister may laugh, but these are serious matters. Under the Bill, any Member of the House might-- depending on what parliamentary Committees he sits on--find himself a notified person. It all depends on the opinion of the Minister.

The Minister should take on board the reservations that have been expressed about the wording, and perhaps table an amendment on Report. The Government might provide for a form of judicial review, or perhaps some other alternative ; but it must not be left to a Minister, however reasonable and liberal he may be today, to make such decisions for all time. Others who came after him might take a very different view.

The hon. Member for Thanet, South (Mr. Aitken) asked the Minister about the sub-tier of people whose work may be connected with the security services. That was also referred to by my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees). The hon. Gentleman maintained that the companies concerned, often private companies, were in a special position, being privy to information that might well bear some protection.

In the programme "After Dark", Mr. Gary Murray identified the firm KMS. In a letter to my right hon. Friend, of which I have a copy, the Home Secretary himself referred to the work carried out for the Government by that firm--work involving the protection of people from other countries while they are in the United Kingdom, and the protection of embassies in London. Employees of KMS may well be in contact with people in the security services, and on occasions required to work with them. They may therefore gain knowledge of a sensitive nature, in the view of the Minister. Can those persons be notified under clause 1(1)(b)?

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