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Mr. Hattersley : As the debate progresses, not only today but in the future, for the sake of clarity and intellectual accuracy it will be important to comment, not on the Minister, but on the Bill. The Minister's answers have revealed that the Government misunderstand two matters. First, they do not realise the relationship between the state and the citizen, described by the hon. Member for Caithness and Sutherland (Mr. Maclennan). Secondly, the Government believe that the state and the Government cannot be distinguished. What the Government believe is right, is right for the state. What is in the public interest is what the Government think is in the public interest and a test of harm is what the Government think is harmful. I shall repeat--I hope not pompously or pretentiously--that those views are not consistent with a free society.
Mr. John Gorst (Hendon, North) : As a newcomer to the subject, I wonder whether the right hon. Gentleman will answer a point that has puzzled me about his recent exchange with his hon. Friend the Member for Denton and Reddish (Mr. Bennett). Let us suppose that a member of the Security Service approaches the right hon. Gentleman in his capacity as a Member of Parliament and informs him about a case of telephone tapping. If the right hon. Gentleman revealed the matter on the Floor of the House would he, according to his investigations, be subject to prosecution? What would his position be as a Member of Parliament?
Mr. Hattersley : I am not sure whether I, as a Member of Parliament, revealing the information in the House, would be guilty and subject to criminal prosecution. I know that my constituent, in telling me, in order that I might reveal the information on the Floor of the House, would certainly be subject to criminal prosecution. Having tried valiantly, but failed, to find anyone other than the Minister who supports the authoritarian nonsense he is about to defend, I shall conclude. It is not inappropriate for me to repeat the point, even though it
Column 1053has been made time and time again. One has only to describe the circumstances in which an innocent person is prosecuted for revealing that the state has operated unlawfully against him or her, to realise how unacceptable the proposition is.
Mr. Richard Shepherd (Aldridge-Brownhills) : Is it not right that if any Security Service officer were to approach a Member of Parliament, that would be a criminal offence under the Bill? That is what many of us find offensive. Has not the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) heard that many Conservative Members have maintained that it is possible for former or present members of the Security Service to raise such matters with their Members of Parliament? Can the right hon. Gentleman identify anywhere in the Bill where that possibility arises in law?
Mr. Hattersley : The answer, as the hon. Gentleman knows better than me, is that it does not appear. I look forward to supporting his positive and detailed amendments as one way that this arbitrary absurdity can be overcome. I shall certainly support his amendments as will my right hon. and hon. Friends.
All we ask--and we are grateful that the hon, Gentleman asks for it--is that a system be provided which avoids the arbitrary nature of the prohibition and enables the state and the courts, which represent the national interest, to distinguish between those matters which it is possible and safe to reveal, and those which it is wrong and dangerous to reveal. I have no strong feelings about how that proper division is obtained. It may be--I suspect that we shall hear this time after time in Committee--that the amendments are inadequate in some detail to achieve that purpose. That is not the issue. The issue is the principle and the test of principle. If the Government believe that the principle is right but the application of it is wrong, we shall gladly accept that, in some future debate, the Government will provide a better mechanism of their own. That is the nature of the Committee stage of a Bill.
We seek to establish in this first debate that it is wholly unacceptable for the Government of the day to be the sole arbiter of what security information should or should not be published and what security information should or should not lead to prosecution.
Mr. Rupert Allason (Torbay) : I beg to draw the House's attention to new clause 6 and amendment No. 67. The issue of the duty of confidentiality is central to the Bill. I shall take the Committee back to the history of the duty of confidentiality.
An important judgment was given in the House of Lords some time ago which knocked a major hole in the Government's interpretation of the duty of confidentiality. As I understand it, the duty of confidentiality is straightforward in civil law--it is the duty of a servant to an employer to protect trade secrets. An example would be where an employee of the Coca- Cola company moved to Pepsi-Cola and took the magic formula with him or her. Under those circumstances, there is a remedy in law for the employer to protect his secrets. The key word in the duty of confidentiality issue is "confidentiality". It assumes that the magic formula is a secret.
Up to the time of the House of Lords judgment, the Government interpreted the duty of confidentiality as a duty of lifelong secrecy. That was rightly rejected by their Lordships.
Mr. Robin Corbett (Birmingham, Erdington) : The hon. Gentleman gave us an analogy involving Coca-Cola and Pepsi-Cola--both of which are best avoided in my experience--but surely in that case the secret formula would be guarded by patent law.
Mr. Allason : Indeed, but that is also civil law. It would not be a criminal offence if somebody tried to trade a secret that they had acquired from a former employer. In the case of Peter Wright, it did not matter whether he worked for the Security Service or for British Rail. The principle over which the Government prosecuted him was whether a breach of confidentiality had occurred. The case was defeated because, to be frank, there were no secrets in the Wright book. In Australia the book was examined line by line and no great disclosures were found, although there was a certain amount of new material. However, the plank on which the defence rested was that there was nothing new in the book and that most of the information had been published elsewhere.
My amendment and new clause seek to introduce yet another check and balance. When the Security Service Bill was in Committee the Government rejected all the checks and balances proposed--including judicial review, Committees of Privy Councillors and parliamentary oversight. I seek to persuade the Committee today that my amendment and new clause would provide a check or balance.
At the heart of this matter is the sanguine attitude of the Secretary of State and the Minister. In the other place, the Benches have edges so that bishops who have enjoyed heavy lunches are prevented from falling off. I nearly fell off my Bench when I heard the Secretary of State wax lyrical about the post-war record of the Security Service. I wonder who advised him on that. Did the advice come from Home Office officials or from the Security Service? I shall give one or two straightforward facts to illustrate the post-war record of the Security Service. The Committee may be surprised to learn that between 1945 and 1972--the period the Secretary of State was talking about--not one Soviet spy was arrested in this country on the initiative of the Security Service. During that period, all the famous spies--including Fuchs, Nunn May, Vassall, the Portland spy, Harry Houghton, Ethel Gee and Gordon Lonsdale--were identified by defectors who arrived not in this country but in the United States and pinpointed those leaks of security in the British establishment.
There was, however, one case between 1945 and 1972, and it is trotted out by the Security Service as the classic example of its counter-intelligence prowess. It is the case of William Martin Marshall, who was arrested for passing secrets to a Soviet intelligence officer. How was he caught? The Committee will be interested to know that a Security Service watcher got off a bus at Kingston when going home for lunch one day and saw a Soviet intelligence officer lurking in a doorway. Interested to know why this individual, on whom he had been targeted for surveillance six months earlier, was in Kingston, he hung around. He waited and saw Sergei Kuznetsov meet William Martin Marshall, who was a member of the diplomatic wireless service and who was subsequently convicted. So between 1945 and 1972, the period about which the Secretary of State waxed so lyrical, the splendid record of the Security Service was that of having caught just one Soviet spy--and that by mistake.
Mr. Gorst : Does my hon. Friend agree that what he has just recounted is presumably the reason why memoirs that reveal that sort of fact would be regarded as harmful to the nation because they would reveal the extent of the inadequacy of our Security Service?
Mr. Allason : That is an interesting route to follow--that if we have a useless Security Service we should keep that a secret because it may well be damaging. I agree entirely, but I want an efficient service.
If the Secretary of State takes advice on this matter, he may like to turn his attention to the undeniable fact--
Mr. Hattersley : May I put to the hon. Gentleman the opposite, or perhaps complementary, argument to that which he has offered us? Some of us believe that if a draught of exposure of information were to blow through the Security Service and it became accountable, it might become more efficient. Instead of wasting its time tapping trade unionists' telephones, it might catch some spies--another argument in favour of what the hon. Gentleman proposes.
Mr. Allason : The record in Australia, Canada and the United States shows that in spite of the worst fears about oversight the intelligence communities there accept and live with the new mechanisms, and in Canada the system has been used to the advantage of the Security Service. The report that I mentioned in Committee during discussion of the Security Service Bill is illuminating and instructive to the public and shows the importance of the work of the security service. Some of the details are deleted from the case histories, but three or four case histories from the various branches of the Canadian security service are there, and the report has done a tremendous public relations job for the organisation. That is one of the reasons why I tabled an amendment to that Bill.
I come now to the idea of greater efficiency on the part of the Security Service. It is not widely known that there are not just one or two establishments in London but that, at any given time, between eight and 11 large buildings are being used by the service. Is it not extraordinary that a counter-espionage and counter-intelligence organisation should locate its establishment in the only geographical region in the United Kingdom that is freely available to Soviet intelligence officers working under diplomatic cover? I am not recommending privatisation of the Security Service, but I certainly recommend moving it out of London--perhaps even to Torbay. If the Security Service remains in London it will be within a couple of miles of Soviet diplomatic missions and therefore a target. Perhaps that aspect of efficiency should also be considered.
The real substance of my amendment and new clause is to allow Security Service officers and intelligence officers of all sorts to write their memoirs. There is nothing staggering about that--the practice has been going on for years. I shall give a few examples from the Security Service. No fewer than two directors-general of the Security Service have written their memoirs. Sir Percy Sillitoe's memoirs, "Cloak Without Dagger", were written in office time, ghosted by his personal assistant, and published with the consent of the Home Office. Sir Percy Sillitoe retired from the Security Service and went to run a sweet shop in Eastbourne. The book supplemented his income from selling fruit bonbons.
Column 1056Sir Vernon Kell, the first director-general of the Security Service, left a large memoir which his wife subsequently passed to the author, John Bullock, and which was the basis of a book published in 1963 and entitled "MI5". Since then there have been several other books, two of which were written by the Security Service. In the wake of the Klaus Fuchs, Nunn May and Bruno Pontecorvo cases the Security Service decided that it was time to do a little public relations exercise. One of my constituents was authorised to talk to an author, Alan Moorehead who subsequently wrote a book called "The Traitors". It came directly from the files of the Security Service. Another book, "Handbook for Spies" by Alexander Foote, was ghosted by a Security Service officer, so there is nothing new about the Security Service sponsoring or writing books.
Memoirs are interesting. Two wartime officers, Derek Tangye and Stephen Watts, wrote memoirs of their work in the Security Service. Neither of them, and certainly not Derek Tangye, sought permission to do so and nothing was done about them. In the postwar period three wartime double agents wrote their memoirs. Lily Sergueir wrote her account of being a double agent during the war, as did Dusko Popov. Neither sought permission and the Government took no action against them.
Eddie Chapman, on the other hand, who has had a colourful career as a safe cracker and who parachuted twice into this country, was prosecuted immediately after the war for selling his story to a newspaper. The newspaper, the journalist who received his information and Eddie Chapman himself were prosecuted at the Old Bailey. When the judge had heard the evidence of Eddie Chapman's MI5 case officer, he said that although he had to find Chapman guilty he regarded him as the bravest man that he was ever likely to meet, and fined him a nominal sum.
In more recent years there have been two other major contributions to literature on the Security Service. One was authorised--the memoirs of Lord Rothschild. The other was not, initially, authorised and was an important precedent for my amendment and new clause. It was the case of J. C. Masterman in 1972. He had retained a copy of the wartime history of his XX committee, on which he had served from January 1941 through to the end of the war. At the end of the war, he was commissioned by the director-general of the Security Service to write a detailed account of the work of the XX committee and the double agents that it had run.
J. C. Masterman attempted fairly continuously from the 1950s to 1972 to have the book published. In his dotage, and having taught a large proportion of the Cabinet of that time, including the Prime Minister and the Foreign Secretary, he announced that he was definitely going to publish because he had made an agreement with the Yale University Press and, come hell or high water, he intended to go ahead with it. On that basis, the Government caved in and came to an arrangement with him which is well worth looking at because it is a fascinating precedent in the matter of copyright. Because of the bust-up between Masterman and the British Government, the Government imposed Crown copyright 1972 on the book and shared the royalties, as they do to this day, with J. C. Masterman.
As for the Peter Wright book, whatever one says about books of this kind, they will continue to be written in future. The only question is whether this country and the
Column 1057security authorities will have any influence over their contents. Peter Wright exempted himself from the strictures of the Official Secrets Acts, not merely by moving abroad but by taking Australian citizenship. So the British taxpayer had to endure the spectacle of the Cabinet Secretary going to Australia--club class--with a team of lawyers and had to watch every day what was or was not in the British national interest being fought out in an Australian court before an Australian judge with an Australian defendant. There were no surprises about the outcome of that particular issue.
I do not seek to defend what Peter Wright did, but I draw the attention of the Committee to the effort that he made in offering to delete any material that the authorities regarded as sensitive. Individuals who have served their country well for many years can be trusted in very large measure not to spill the beans and give away secrets that jeopardise current operations and put people's lives at risk. That really does not happen.
I speak for one or two other Back Benchers when I say that when hon. Members have tried to acquaint themselves with the details of the work of the Security Service--not operational details, but the policy and principles behind the work--to be stopped dead in their tracks when told that a person of enormous experience, having served in the Security Service, should not be allowed to come to the House to explain and to answer questions is profoundly offensive not only to hon. Members but to the former member of the Security Service involved.
I have described some of the precedents relating to the Security Service. I seek the indulgence of the Committee to turn to a few of the precedents set by the secret intelligence service because that, too, has a rich literary history.
Mr. Gorst : Does my hon. Friend agree that another consequence of what is now happening is that the more one restricts the availability of something, whether it be alcohol or information, the more one increases its price? If it is necessary to sell information or alcohol to people abroad because it is impossible to sell it at home, I suspect that in both cases the price will go up rather than down and although the supply is restricted it will remain available.
Mr. Allason : I recognise what my hon. Friend says. This is no new phenomenon--it is steeped in time. Nor is it actually a matter of price. Going back to the principle of the duty of confidentiality and its role in the civil law, my hon. Friend will be aware of the case of Anthony Cavendish, who was threatened with civil proceedings under the duty of confidentiality and who, to circumvent that, decided to give away copies of his book because the Treasury Solicitor could take absolutely no action against that unless there were to be an Official Secrets prosecution-- which, as we all know, is somewhat unlikely.
The literary background of the secret intelligence service is worth going into. The first major books written on the secret intelligence service immediately after the first world war were written by Henry Landau. They were published in America, only one volume being published in this country. Henry Landau was a South African living in America and he started the ball rolling. There was very little after his revelations of the Secret Intelligence Service's operations in the first world war until shortly before the second world war, when Sir Compton
Column 1058Mackenzie was prosecuted for revealing various desperately secret details such as the fact that the chief of the secret intelligence service was known by the letter "C".
As was pointed out in Committee when the Security Service Bill was being debated, the judge observed that if it was so deadly secret that the chief of the secret intelligence service was known as "C", why had he not changed it to "D" or "E" and had there not been some 20 years for him to do that?
The key to the Compton Mackenzie prosecution, however, is the little-known fact that the deputy director-general of the Security Service at that time not only authorised publication of the book--he was a great friend of Compton Mackenzie--but was himself a somewhat vain individual and was terribly flattered by the references to himself. This was part of the reason, I suspect, why the prosecution did not press the case very hard and why Compton Mackenzie, although convicted, was given a very small fine.
Mr. Allason : No, I was not suggesting that. The then deputy director-general of the Security Service was a very vain individual and he was terribly flattered by what Compton Mackenzie had written, hence his motive in authorising this particular disclosure and hence the appalling mess that the Government got themselves into at the time.
Mr. Dalyell : The hon. Gentleman must be a little careful in going into this particular example because Compton Mackenzie used to hold court in his house in Drummond place in Edinburgh and told, at some length, all who would listen that he felt that he was being got at on personal grounds, and that much of the case was connected with issues of personality rather than with the prosecution of the law.
Since the second world war there has been a rich history of literary endeavour by former secret intelligence service officers. I mention in passing Hugh Trevor Roper, Professor A. J. Ayer, Graham Greene and Malcolm Muggeridge. I do not believe that any of those people ever sought permission to write about their experience in the secret intelligence service.
Two others wrote about their experiences--Philip Johns and Professor R. V. Jones. Professor Jones was given clearance to write his contribution. Perhaps the most remarkable one--and this has echoes of Peter Wright--is the experience of Leslie Nicholson. He applied to his chief, when he discovered that his wife was dying of cancer, for financial support in order to hospitalise her in America. The chief at that time declined his application and said, in effect, "The best that we can do is to commute your pension"--a remark which will have a familiar ring to hon. Members--so his pension was commuted and the book was published under the pseudonym John Whitwell. That book was not prosecuted in 1967 because the Government had advance warning that another senior British secret intelligence service officer--the former head of station in Washington, H. A. R. Philby--was about to put pen to
Column 1059paper with "My Silent War". That is part of MI6's experience. In short, there is nothing new about intelligence officers writing their memoirs, and I believe I am right in saying that at the launch party of "The Ultra-Secret" by Fred Winterbotham, almost the entire membership of the D-Notice committee was there. They may have looked glum, but they were there.
The issue of intelligence officers writing books will not go away. It will be with us for a long time and if the Secretary of State believes that people can be deterred from writing legitimately about their experiences by threats of prosecution, I do not believe that to be the case. Indeed, my understanding of the vibes in the publishing business is that publishers are anxious to get their authors prosecuted because that seems to be one way to assure a world-wide best seller.
In America, a body known as the publications review board has worked extremely well. Most former directors of the Central Intelligence Agency have written their memoirs. The sky has not fallen in on north America in consequence. Recently, the Comte de Marenches, who was the head of the French secret intelligence service, wrote his book and, so far as I know, the sky has not fallen in on Paris. It is a legitimate exercise.
I would take the argument a step further. Is it not worth while, as we have public servants who develop considerable talents in their subjects and gain great experience, for the taxpayer and the public to gain some of that experience? After all, they have subsidised those people for many years. The best example of that must be the recent book "Lust for Knowledge" written by Mr. Roosevelt, who spent about 30 years in the middle east as a CIA officer, who has gained a great wealth of experience and who has a particular perception of events in the Lebanon. The world is a richer place for his book. There are no damaging disclosures in it. Apart from the integrity of the individual, he had a publications review board to which to submit his manuscript. There are a few minor interesting details, such as the fact that he is the third CIA chief of station in London successfully to write his memoirs. But apart from those details, there is nothing of operational significance and nothing to put lives at risk. In my view, the United States was wise to take advantage of that system.
When my right hon. Friend the Secretary of State discussed the background to the post-war history of the Security Service, there was one case on everybody's lips. We resisted going into that case because of the passage of time. But it is a key to what is before us today because only one document has ever been written officially and placed on the public record by the Security Service. It is a document which can be used as a sort of acid test for the integrity of the Security Service.
I refer to the White Paper on the Burgess and Maclean defections. I will not go into the details of the problems that were involved in that case, but the official version said basically that Burgess and Maclean disappeared and were not noticed missing until a Monday morning. The reality is that Burgess was spotted on a Saturday night leaving this country and that an immigration officer, having seen Burgess get on the SS Falaise, telephoned Leconfield House, the headquarters of the Security Service, where a
Column 1060conference was then under way on the fifth floor at which the case officers involved were discussing how they would develop the interrogation of Maclean on the Monday morning.
When the telephone call was received, a senior officer was dispatched to go home, collect his passport, go to the airport and fly to France, and intercept Burgess as he got off the ship. The ship was not due to dock until midday, so there was every opportunity to stop Burgess in his tracks. The senior officer went home, got his passport went to the airport, realised that his passport was out of date and went back to Security Service headquarters. Frantic telephone calls were made to try to revalidate the passport--and we know what happened to Burgess and Maclean.
I relate that story not to pour scorn on the Security Service. Many of us have had small problems with our passports and with validating documents and so on. The significance of the story is that the Burgess and Maclean White Paper is one of the most disgraceful documents ever to have been put on the public record, and it was penned from start to finish by the Security Service. It contains no fewer than 17 direct errors of fact. Hon. Members will not be surprised to learn that the officer who went home and whose passport was in a mess was subsequently made the head of MI5, went on to head another organisation and later received a knighthood.
Mr. Eric S. Heffer (Liverpool, Walton) : The hon. Gentleman has a great deal of information which he could not have come by out of the blue. God did not send a message to him. He obviously spoke to certain people. So detailed is his information that the people with whom he spoke must have been near to or in, or surrounded by people involved in, the Security Service. That is fine. But is he aware that each one of those people-- because the information might be considered damaging, certainly to the Security Service--could find themselves under the Bill being prosecuted and then perhaps in prison? Indeed, I am not certain that the hon. Gentleman is not in that position himself. I fear that under the Bill, by disclosing such matters in this Chamber, he could find himself in real difficulty. I am fascinated by his speech. It is marvellous stuff. I have read his books and I have always thought that he had close connections with certain people. I am not saying that there is anything wrong with that.
Mr. Allason : I am grateful that the hon. Gentleman does not think anything is wrong and I do not want to feed his paranoia. An enormous amount of information is available from public sources. I find it somewhat distressing, as an amateur historian who has spent some years researching these matters--much of it from open sources and a lot of it abroad--that the hon. Gentleman should have made that sort of intervention. The fact that one has taken trouble to research a subject should not be interpreted as sinister. I shall not make the argument for ignorance, but--
Mr. Allason : I am not paranoid. I believe that there is too much secrecy in this country. Only last week I received a letter from the Ministry of Defence informing me of the fact--as yet undisclosed--that two members of the armed services had defected from this country. The letter said that further details of the cases of Major Richard Squires
Column 1061and Robert Patchett could not be disclosed for reasons of confidentiality, although they are now listed as defectors. I despair of the attitude of secrecy in this country.
There is one acid test of the integrity of a security or intelligence service which I do not believe that my right hon. Friend the Secretary of State has made clear. From 1945 to 1972 the United Kingdom did not receive any defectors. The acid test of the integrity of a security service is that if we do not receive Soviet defectors there is something wrong with the system. Thereafter we received Oleg Lyalin. Members of this Committee, I am sure, will be reassured to know that the ability to run a successful case, such as the defection of Oleg Gordievsky, is an indication that all is well --it could be a lot better--within the security and intelligence community. My amendment and new clause will end the practice of the D notice committee of restricting the rights of authors, which in my experience is long overdue. For anyone who says that the D notice committee protects security, I will end with the following anecdote. Peter Laurie, who wrote a book entitled "Beneath the City Streets", submitted his book to the D notice committee in the hope that material that jeopardised security would be deleted. The manuscript, however was returned to him without any changes. When he asked why no changes had been recommended, it was explained to him that to point out to a journalist where the breaches of security lay would itself be a breach of security. Peter Laurie is no off-the-wall hack or reptile. He is a distinguished journalist who became an editor of several magazines, including a computer magazine. That surely makes the case for a publications review board. Such a system works everywhere else in the world and it is high time that we had one in this country.
Mr. Michael Foot (Blaenau Gwent) : The hon. Member for Torbay (Mr. Allason) has made an important contribution to our discussions. He has generally illustrated how hopeless it is to try to deal with this problem by the Government's proposed methods. My right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) at the beginning of the debate posed some direct questions to the Minister about what may happen if this clause goes through in the form presented, to which he received no satisfactory answers. We shall, therefore, be waiting to hear what the Minister says in reply. I believe, too, that questions going back over the past 10 or 20 years or more and covering the entire question of the publication of information about the Security Service are important ones, which the Government are attempting to deal with by an absolute blanket suppression. The hon. Member for Torbay, if he has done nothing else, has illustrated what a far-reaching departure that would be from the present operations. The Government may say that it is a good thing to depart from the way in which the Government have been dealing with these matters in the past few years. Of course, there is something to be said for that, because no one in their right senses could possibly say that the Government-- especially under the direction of the Prime Minister and the Law Officers-- have dealt with those questions in a sensible, sane and intelligent way. The Government have cost the taxpayer huge sums. They have reached the end of the proceedings and some eminent judges have come out against them on the main way in which they were operating the security services.
Column 1062The way in which the Security Service has been operated over recent years has been completely unsatisfactory and, naturally, if the Government intend to introduce a new Official Secrets Act, they should think of some reasonable way of dealing with it. They should carefully consider the recommendation of the Franks committee and others. I know that it is outrageous to suggest this to the Committee, but the Government could even have listened to the debate that we had on the White Paper. If they had incorporated into this Bill some of the major criticisms that came from both sides of the House, they would not be confronting the Committee with such a hopelessly unworkable clause.
The hon. Member for Torbay has shown that the way in which the Security Services have dealt with this question during the past 10 or 20 years-- possibly ever since 1911--is by way of a number of charges and counter- charges. When members of the Security Service have broken their undertaking or done something that the Government did not like, other sections of the Security Service have been incited to answer them in one form or another. During a considerable period, we had, for instance, what was known as the Chapman Pincher method of dealing with those problems. Sections of the secret service were using such journalists as Chapman Pincher, who were prepared to be used in this way, to deal with these problems, which is entirely unsatisfactory. The Government, however, were prepared to do that for a number of years. I believe, so unworkable is this clause, that if the Government attempt to push it through in this form, all they will get is a recrudescence of such attacks and counter-attacks by members, or past members, of the secret service, and the new situation would be no more satisfactory than the previous one.
The hon. Member for Torbay has proved conclusively that the Government are seeking to place a blanket suppression over an entire sector where previously no such suppression was even considered and where, indeed, they had discovered quite different ways of dealing with it. I believe that on that ground, too, this clause is unworkable. Even if it were applied to the present situation, it would soon break down, because different sections of the Security Service would have an interest, as they have in the past 10 or 20 years, in getting their story into the public domain and thereby breaking down the protections.
My right hon. Friend the Member for Birmingham, Sparkbrook put it most forcibly and I do not wish in any way to depart from his direct questions to the Minister. It must be asked, however, what will happen to the Member of Parliament who was approached by someone who, under this provision, would be breaking his confidentiality undertaking. That is an important aspect of the matter. On Second Reading Duncan Sandys was referred to in that regard, because, I suppose, that was the classic case. As I understand it--if I am wrong, no doubt I will be put right--the Government are now making illegal what happened in the Duncan Sandys case--that is to say that somebody in the secret service or associated with it, who gave evidence or information to a Member of Parliament, who in turn wrote to the Minister-- as Duncan Sandys did--or raised the matter in the House, would be committing a prohibited or illegal act. If that is so, as I believe it is, it is an extremely serious development. It is associated with the idea that there is no public interest defence. If a public
Column 1063interest defence were written into the Bill, there might be the protection for the Member of Parliament, for Duncan Sandys to say, as he did, that the matter was in the public interest.
I remember those days well because I was working in Fleet street. Although the claim did not get to a court of law, in the end the matter subsided after it had gone to the Committee of Privileges and had been generally discussed here. The reason why Duncan Sandys, Winston Churchill and the others associated with them could sustain their case was mainly because overwhelmingly people could see for themselves that it was in the public interest that such a matter should be aired.
All the attempts of Hore-Belisha, the Minister for War at the time, to prevent the matter from being brought into the public domain injured nobody but himself. Undoubtedly one reason why he was excluded from Churchill's Government during the war--there may have been other good reasons--was because Churchill remembered how he behaved in that case.
It is extremely important to discover whether the Government are attempting to intervene with the sort of safety valve which operated in the Duncan Sandys case. I should like an absolutely clear statement from the Minister, who is nodding his head, that just as the Sandys case could be aired in 1938, so it could be under this legislation. That is of great importance to us.
I have been reading the background material to the Duncan Sandys case. Churchill had much to do with it and was extremely interested in whether his sources would be protected and what action might be taken against him. Over the preceding four years Churchill had received a host of information similar to that which Duncan Sandys brought out into the public domain. Some of it was the very information which enabled Churchill to make a more authoritative case about what was happening in Europe than most members of the Government of the day.
If anyone looks at the Martin Gilbert book which discusses this period, they will find the fascinating footnote on page 953 about what Churchill did after the Duncan Sandys case. Churchill did not take the frontal position in fighting the Government of the day because he wanted to preserve his position and have followers among the few Conservatives who were voting against the Chamberlain policy. I have discovered only recently that at the conclusion of the whole Sandys case--people have never noted this before--Churchill wrote on 1 September an anonymous paragraph in the Londoner's Diary of the Evening Standard, the paper on which I happened to be working at the time.
What he published is extremely applicable to the whole operation of the Official Secrets Act. No doubt he had it inserted in association with Lord Beaverbrook, the owner of the Evening Standard. Despite all their differences on many other matters, Beaverbrook was naturally eager that Churchill should have his say in conclusion on this matter, although he did not want to put his name to it. Churchill wrote :
"Although the report of the Sandys' case is long delayed and the issues are over-clouded by larger matters, it is well to repeat and inculcate the definite principle upon which Parliament, the Press and the Public will unite, namely, that the Official Secrets Act was intended for spies, crooks, traitors and traffickers in official information, and should never be invoked unless there is a prima facie case on these lines against anyone, be he journalist, Member of Parliament, or merely man-in-the- street."
Column 1064That was Churchill's definition in 1938--a dangerous moment in our history--of how the Official Secrets Act should be properly limited in its operation.
If the Government had any respect for those traditions, they would have incorporated that principle into the Bill which would have separated absolutely what could be done properly under the Act and what was forbidden. If the Government acted on Churchill's recommendation, the Bill would be different. So clear is the contrast between what happened then and what happens today that the Bill might be called the Winston Churchill (Retrospective Criminal Conviction) Bill. In other words, if the Bill is passed, it will prove how shocking, unwise and outrageous the action of Churchill and Sandys was at that critical moment in our history.
It may be said that the Government and circumstances were different in those days. In those days in the House of Commons the Government had a large majority. Churchill was in a tiny minority and could hardly say what he wanted, although he sat on the same Benches as hon. Gentlemen who will move amendments shortly. In those days the Prime Minister would not listen to any representations made from any quarter, and had eased or thrown out of the Cabinet a whole list of his eminent contemporaries. In those days the Prime Minister had a House that was absolutely subordinate to his will, and the House of Commons was prepared to pass any measure he liked to present, even one as absurd as the Bill today. That was the Parliament of 1931-1939--the most wretched, evil, shameful Parliament in British history.
Mr. Foot : The Labour party opposed from these Benches. It was from these Benches that Arthur Greenwood spoke for England and that the vote on the Adjournment was put on the Order Paper in the Norway debate which led to the destruction of the Chamberlain Government and placed in power Churchill, who abided by these principles. I ask the Government to take the Bill away and re-draft it in conformity with the traditions of real civil liberties, not only as they are presented, as they have been so forcefully, by my right hon. Friend the Member for Sparkbrook and others from this side of the Committee, but by the whole Churchillian tradition on the Government side of the Committee. Every true supporter of that tradition will vote with us in the Lobby tonight.
In clause 1(1) the Government seek to strike back at the courts, common sense and common law. They are trying to justify and remedy the independent judgments of most of the world. It states clearly that a person who is or has been a security or intelligence services officer
"is guilty of an offence if without lawful authority he discloses any information."
That is not a new proposition to the Committee, because it was the subject of the "Spycatcher" case. Indeed, we could almost call this the "Spycatcher" clause. It is the principle that the disclosure of any piece of information, no matter what it is, is an absolute offence. My amendment and those of my hon. Friend the Member for Thanet, South (Mr. Aitken) and the right hon. Member for Morly and Leeds, South (Mr. Rees) are an appropriate way for a
Column 1065democratic House to approach the contentions of Government. The Government have made this proposition in almost every court anywhere--in Australia, our High Court, the Court of Appeal and the House of Lords--and no one has accepted it.
It is true that our former colleague, the present European Community Commissioner, Sir Leon Brittan, echoed the view of the courts when he said that the duty of confidentiality is unexceptional and correct. I feel sure that no right hon. or hon. Member dissents from the proposition that confidentiality and the duty to observe it is unexceptionable and correct. Our interest is in how one tests that duty. Are there extraordinary cases or circumstances in which that duty is superseded? I am certain that every one of us, and the courts, by and large, recognise the exception of triviality. Therefore, the Security Service officer who confides to a friend that he has been given a gold watch for 25 years' service commits no great crime. He has revealed information without authorisation, but it is so trivial that prosecution is not justified.
In clause 1(1), the Government assert that making such a disclosure is a heinous offence and that the entire edifice of Government confidentiality will collapse if the confidence that a gold watch has been received is revealed. The Government go beyond not wishing to prove in the courts that damage has been done. The very suggestion that a gold watch has been received is deemed an absolute crime, for which there can be no defence-- not the defence of triviality. I do not believe that triviality really concerns the Committee, so I turn to serious matters and to the possibility that a crime of iniquity has been committed. In trying to give relief from the Government's contention, we have tabled the third group of amendments, but in examining clause 1(1) we are scrutinising the Government's proposition that they have trailed and trawled in the past. I call it the "Spycatcher" contention, but perhaps I should name it the Armstrong contention.
Having wrecked Robert Armstrong's career and public esteem in Australia, the Government immediately gave him a peerage and elevated him to the House of Lords. In his maiden speech on the Bill's Second Reading there, Lord Armstrong retrailed the Government's tired, worn and very contentious arguments, saying that no servant within the security services may ever reveal anything. He tried to advance that proposition in Australia, and again in the House of Lords. The Government tried doing so in the High Court, the Court of Appeal and the House of Lords. The High Court said no, the Court of Appeal said no, and the House of Lords also said no.
The Government said that they would listen to any arguments made following publication of the White Paper. Now they say that the House of Commons does not really matter in all of this. For 300 years, we have entrusted to the High Court and to the other courts the duty of weighing up what is right and what is not. We are talking about the common law of England. Can one enjoin anyone to an absolute duty of confidentiality in connection with crime, fraud, or the destruction of parliamentary democracy?
What do the Government say? They say that one can demand such confidentiality. Clause 1(1) uses the words
Column 1066"is guilty of an offence if without lawful authority he discloses any information."
In amendment No. 14, the right hon. Member for Morley and Leeds, South and my hon. Friend the Member for Thanet, South and I introduce the concept that the Government must prove that damage has followed from disclosure. I commend to the Committee an examination of that concept and a rejection of the Government's nonsense that it is not a matter in which right hon. and hon. Members ought to intervene.
Mr. Heffer : Will the hon. Gentleman say what he means by "damage"? Damaging to whom? Does he mean damaging to the Government, or to the security of the nation? I can imagine a Government making out that any statement is damaging to them. However, if one can equate damage with the interests of the nation, the individual has a right to make such a disclosure.
Mr. Shepherd : I am grateful to the hon. Gentleman. What concerns the Committee in evaluating the propositions of the Executive or of the state is to whom such damage is done. Clearly the damage must be to the interests of the nation. The Government have determined, rightly, that it is a jury that must determine that. Therefore, we are considering damage to the interests of the nation. Using my example of the gift of a gold watch, clearly no jury will accept that a former or serving security officer disclosing that he received a gold watch merits a possible two years' imprisonment. Similarly, a jury considering whether divulging certain information is necessary to our functioning as a liberal democracy--one cites the example of Peter Wright--may be of many conclude that there is no merit to the defence.
If officers try to undermine a lawful and legitimate Government, it is clearly in the interests of the nation's citizens to know about it. No judge has said otherwise. Even Lord Griffiths said that, however remarkable or remote they may be, he cannot conceive that, in circumstances in which an employee of the state is in possession of such information, and tries following through all the lines of authority but can find no remedy, that citizen is not relieved of the duty of observing absolute confidentiality and of alerting the general public of the danger confronting society.
In clause 1(1), the Government say, "That is all nonsense. We do not like the Court of Appeal or the House of Lords. We do not like anything--and, anyway, the House of Commons is too dumb to understand our contentions." I would not speak so vehemently if we had not been over this ground before. On 15 January 1988, we were presented with a ridiculous White Paper that is a caricature of decency and liberal democracy. We must tolerate also the arguments of the Home Office, which is informed only by its own press releases. The Home Office no longer reads its own Bills.
The Home Office imagines that right hon. and hon. Members are dumb enough not to read the substance of the legislation that courts interpret. The courts are interested not in the dialogue we may exchange in Committee, but only in the legislation that appears before them. The most skilled barristers and articulators of a case will argue over the words contained in legislation enacted by the House. That is the danger. The Government no longer appreciate that there is a distinction to be drawn between Home Office press releases, which caricature the meaning of an amendment, and the words of the Bill.