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Dr. Alan Glyn (Windsor and Maidenhead) : I support this Bill, because it enshrines in legislature some form of basis for the security services. [ Hon. Members :-- "That was last week's Bill."] I believe that the most important point is that there is a lifelong confidentiality for people who work within that service, which is essential.
Mr. John Patten : We have had a most interesting debate. I begin by welcoming back to the House my hon. Friend the Member for Epping Forest (Mr. Norris) in his new seat. His return has been greeted by plaudits from both sides of the Committee. He is sadly missed in Oxford not only by me, but very much by the ladies and gentlemen of the press corps of Oxford, because he and I used to give a good joint party. Unfortunately, the new occupant of the seat, the hon. Member for Oxford, East (Mr. Smith)--perhaps under the strictures of his general management committee--does not join in this entertainment. My right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour) and the hon. Member for Caithness and Sutherland (Mr. Maclennan) pointed out that this debate was being held on the Floor of the House because it concerns an important and constitutional issue, which is indeed the case. I am glad that that fact has been recognised, because it has given right hon. and hon. Members the opportunity to debate these issues fully.
I turn my mind first to a considerable issue of principle, and then there is a host of questions which I must attempt to answer, such as that put by my hon. Friend the Member for Holland with Boston (Sir R. Body), by the right hon. Members for Birmingham, Sparkbrook (Mr. Hattersley) and for Blaenau Gwent (Mr. Foot), the six questions put by the hon. Member for Linlithgow (Mr. Dalyell) and those asked by my hon. Friend the Member for Upminster (Sir N. Bonsor). It has been a long debate and I shall be as brief as I can, but I shall certainly answer those questions.
Mr. Patten : The Home Secretary has been a most assiduous attender at debates on these issues and he will be here shortly to take part, in particular in the important debate on the third group of amendments on public interest defence. It is uncharacteristic of the hon. Gentleman to criticise my right hon. Friend in that way. Anyone who sat through the long hours of the debates on the Security Service Bill would have noticed my right hon. Friend's attendance in the Chamber, and I hope that he will not be gratuitously criticised. It is the Government's firm view that secrecy must be at the heart of the work of the security and intelligence services. [ Hon. Members-- : "Hear, hear."] That argument is shared by all of us. The decision is where to draw the line and which areas should or should not be secret. Clearly, there is a substantial division between me and several hon. Friends, including my hon. Friends the Members for Lancashire, West (Mr. Hind), for Wyre Forest (Mr. Coombs) and for Windsor and Maidenhead (Dr. Glyn), all of whom support an absolute lifelong duty of confidentiality, and those who do not. That is not to say
Column 1094that we do not all support the need for official secrets to be kept. There is a difference of view on where the line should be drawn, and it would be wrong of me to attempt to obfuscate that.
Mr. Richard Shepherd : I have listened for several days to my hon. Friend the Minister. He says that the difference is about where the line is drawn. Is that not what he just said? The point that we are concerned about --I want him to address it somewhere in his effluvium--is that the Minister is not drawing lines. That is an absolute contention. It is not a question of drawing lines ; it is absolute assertion. We are trying to draw lines in our amendments. Let the Minister be disabused of the idea that he is trying to draw a line. Our criticism is that he should be drawing a line, but he is contending for everything.
Mr. Patten : We are drawing different lines because we believe that in one part of clause 1 those in the services should have an absolute lifelong duty of confidentiality. In another part of clause 1 those who are Crown servants and in the Civil Service have other tests of damage applied to them. This is not such a pure and simple matter as my hon. Friend suggests.
The services can operate effectively only if members of those services honour their obligation of absolute secrecy. Any disclosure by them without authority breaches that trust, and so must damage the work of the services. That is what we believe, and it is a matter of belief and view on which we differ.
Amendments Nos. 14 and 16 in the names of my hon. Friends the Members for Aldridge-Brownhills (Mr. Shepherd) and for Thanet, South (Mr. Aitken) and the right hon. Member for Morley and Leeds, South (Mr. Rees) set aside those propositions. They believe--this is where the line is drawn--that secrecy is not always necessary in all circumstances. They think that a member of the services should be able to disclose information without attracting the sanction of the criminal law if he or she can show that the information did not damage the work of the services. We believe that this is one comparatively narrow but vital area where we cannot afford to drop our guard by removing the sanction of the criminal law. It is not new, but already exists and the Bill narrows it.
Mr. Heffer : That is precisely the argument that was used by Mr. Stalin and those in the dictatorships of eastern Europe and other parts of the world. Is not the Minister aware that a gentleman called Krivitsky in Stalin's service wrote a book--he had left Russia--and was run down by the GPU and shot in his hotel in Switzerland? The Minister must think about what he is saying. He is putting forward a dangerous argument.
Column 1095The secrecy which must imbue the services is not merely incidental. It has not grown out of some bureaucratic stuffiness. It is essential for the work of the services. The security of the country and the people rests on members of the security and intelligence services carrying out their work in secret. That is fundamental. That point was well made by my hon. and learned Friend the Member for Burton (Mr. Lawrence) in a debate earlier this week. Having set out my views on the principles involved, I shall get down to answering the practical questions.
Mr. Hattersley : The Minister may have forgotten that not long ago I said that the problem with the Government's argument is that they assert the necessity for absolute, everlasting secrecy, but never justify it. Would the Minister, who has repeated about five times that it is his belief that secrecy must be absolute and everlasting, justify why that must be so for matters of triviality?
Mr. Patten : The justification is the operational needs of the service. I am glad that the right hon. Gentleman has given me the chance to extend my argument. I was not going to, but he wants me to. If a member of the services breaks the obligation of lifetime secrecy, that person certainly gives information which is almost certainly harmful-- [Interruption.] Let me explain. If the right hon. Gentleman will listen, I shall answer his question. That agent betrays the special trust which has been placed in him or her and undermines confidence in the ability of the services to carry out their vital work.
Mr. Hattersley rose --
It is not just the confidence of the public which is damaged but, equally important, the confidence of those who provide or may provide information to the services, and the confidence of others who necessarily co-operate with them. When a member of the service breaks the necessary silence in which we believe and assert the services must work, he also undermines the confidence of his colleagues in each other. That point has been missed entirely during the debate and it is worth our attention.
Mr. Hattersley : Will the Minister address the matter seriously? If he accepts the amendment, there is a mechanism by which trivial information may be legitimately passed out. The idea that a Security Service officer has broken any rules is automatically vitiated by the fact that the rule is there so that trivial information is available. The idea that it is a breach of confidence is destroyed if there is a mechanism by which non- damaging information can legitimately be disseminated.
I shall give the Minister an example of what I mean and he can explain why the information should be kept secret. Sir Mansfield Cummings, who was head of MI6 during its inception and remained head from 1919 to 1923, kept a log book since it was his habit, having been a sailor. Recently his family asked, for sentimental reasons, to see it. They were told that they could not see any of it or obtain the information they sought--the name of the theatrical costumier from whom Sir Mansfield Cummings bought his
Column 1096disguises. [Laughter.] How would it be detrimental to the state if that information were given a wider audience? [Laughter.]
Mr. Patten : The right hon. Gentleman succeeds in engaging the attention of the Committee and in getting a good laugh from his right hon. and hon. Friends. I will not comment on operational decisions taken by the service in the past. That is a tradition followed by Governments of all political colours in respect of major and minor operational decisions. I hope that it will continue.-- [Interruption.]
I turn to specific questions. That put by my hon. Friend the Member for Holland with Boston particularly exercised the attention of the hon. Member for Linlithgow. I also knew the late Russ Kerr--although, I suspect, much less well than Opposition Members. I remember him seated below the Gangway, and seeing him in other parts of the House. He was a much respected Member. As with my answer to the last question, when a hilarious and funny example was given by the right hon. Member for Sparkbrook, my response to any question regarding operational decisons relating to someone in the past must be the same as that always given by Ministers, of whatever party, who have ever stood at the Dispatch Box. We do not comment on operational issues affecting individuals. That is a fundamental principle. I hope that if the right hon. Gentleman is a member of a future Labour Government, he will not stand at the Dispatch Box and make flip judgments about operational matters concerning the security services.
. Friend the Member for Holland with Boston gave a specific example and asked whether he would be committing an offence. I assure him that, although his example came from before the introduction of the Interception of Communications Act 1985, as I explained earlier, he could now go to the tribunal and have the matter properly investigated without placing any secrets in jeopardy. Alternatively,he could go to the police, who are themselves Crown servants. In thaway, he would commit no offence. Sir Richard Body : If my informanwrote his memoirs 20 years after the events, would he be committing an offence under the Bill?
Sir Richard Body : If, 20 years after the event, and having retired from the security services, my informant wrote his memoirs and alluded to the incident I mentioned earlier, would he be committing an offence under the Bill?
Column 1097refers was a member of the security services. Having established that, the answer to his question is yes. He would commit an offence, because he has a lifelong duty of confidentiality owed to the state. Another question raised by the right hon. Member for Sparkbrook interested the right hon. Member for Blaenau Gwent and the hon. Member for Linlithgow. The right hon. Gentleman asked what will happen if he is informed that his telephone is tapped. It is a variant of a number of possibilities he has suggested over the past weeks.
Mr. Campbell-Savours rose --
The right hon. Member for Sparkbrook cited the example of a member of the security and intelligence services informing the right hon. Gentleman that his phone is tapped, or that his property has been entered, without a warrant. The right hon. Gentleman asked what he could do in that situation. I shall take it in three stages, and then give way if the right hon. Gentleman wants me to elucidate. Any person finding himself in such a situation could refer to the tribunal and complain. That is one avenue of redress. The Bill does not require such a person to leave the matter there. If he has evidence of the commissioning of a criminal offence, he could quite properly go to the police. I shall refer the right hon. Gentleman to the relevant clauses and subsections.
The police are Crown servants and their function is to investigate crime. Nothing in the Bill prevents the police from investigating crime. Clause 7(3) is explicit on that point. So another sensible course of action for the right hon. Gentleman would be to report his feelings to the police. However, if, in this hypothetical example, the right hon. Gentleman acted differently and did not go to the tribunal or to the police but made his views known in a different way, he might commit an offence.
However, I shall place that in context. It certainly would not be an absolute offence. It is an offence that would need to be considered under clause 5(3), which attracts the damage test in clause 1(3). It would be a matter of judgment whether a prosecution should be brought. If it was, it would be for the jury to decide whether the right hon. Gentleman is guilty. I hope that I have satisfied the right hon. Gentleman on that point.
Mr. Hattersley : As we seek to be sensible in debating the Bill, I do not propose being categoric. However, I have grave doubts about the Minister's interpretation. We shall pursue it, but as we wish to deal with the Bill sensibly, I shall not attempt to score points until I am sure of my facts. However, the Minister answered another point by implication. I asked him if, in the circumstances he described, and in which I was informed of such an act, I would be committing an offence if I so informed a solicitor. As a solicitor is not, by any standard, a Crown servant, it seems that I would.
Mr. Campbell-Savours rose--
Mr. Patten : Perhaps I may be permitted to conclude my argument. The right hon. Member for Sparkbrook says that he wants the issue to be addressed in a sensible and rational way. That is precisely what I am seeking to do. The other half of the question concerns the position of Crown servants. [ Hon. Members :-- "It was about solicitors."] The right hon. Gentleman should first go to the tribunal, which has legal staff, and he should then go to the police.
Mr. Patten : The other point raised by the right hon. Gentleman concerns Crown servants. If a member of the security and intelligence services, or a notified person, discloses any security and intelligence information without authority, he commits an offence--and quite right, too. However, if he feels aggrieved--and this point concerns my hon. Friends the Members for Thanet, South and for Lancashire, West--he may refer to the staff counsellor. My hon. Friend the Member for Upminster gave an excellent example in the course of his brief and pointed remarks towards the end of the debate, which showed that the system is working. The mechanism whereby people can refer to their departmental heads and then seek redress works. Several Hon. Members rose --
Mr. Campbell-Savours : The Minister told my right hon. Friend that if he had evidence he should take it to the police. Information about telephone tapping would only be in the hands of persons on the "contained secrecy" side of the law. If they made a statement which was then used in evidence to the police, could they not be prosecuted because they had been used as people giving evidence?
Mr. Patten : That is not the case. The right hon. Gentleman wanted to know whether, if he felt that a criminal offence had been committed, he would himself be liable under criminal law if he alleged as much to someone --he was unclear about who that would be. I have described the route down which any aggrieved citizen can go. It is a twin-track route consisting of the tribunal and the police, and is protected under clause 7.
Mr. Donald Anderson (Swansea, East) : Is not the remedy that the Minister suggests--that Mr. Citizen should go to the police and make a complaint--likely to prove illusory in practice, because it is probable that someone who leaks information from the secret services will not wish to be named in view of the possible repercussions for him? He could only say to the police, "I
Column 1099have it on good authority that my telephone is being tapped." The police would almost certainly reply, "We want better evidence than that before we are prepared to investigate."
Mr. Patten : As a distinguished barrister, the hon. Gentleman knows that sometimes complaints are laid before the police and investigated thereafter, on the basis not of naming the person concerned but of allegations that have come from a number of sources.
Mr. Andrew F. Bennett : The Minister has pushed the point that the logical course is to go to the tribunal. But, as was said earlier, many citizens in such circumstances would not know where to go. The Minister says that they should go to the police, but I suspect that many people would be very worried about going to the police in the first instance unless someone encouraged them that that was the right thing to do. They might consult a solicitor or a Member of Parliament. Can the Minister give an absolute assurance that they would not be committing an offence by giving the information to either a solicitor or a Member of Parliament?
Mr. Patten : There is no offence in the Bill of receiving information. If someone receives information that gives him cause to believe that a criminal offence is being committed, he should, like any citizen, seek the automatic redress of going straight to the police.
Mr. Gorst : If a disaffected, aggrieved member of the service went through all the correct procedures and at the end was not satisfied ; if he believed that the matter was serious and of national importance ; if he stood for Parliament and was elected, and then raised the matter on the Floor of the House, would he be committing an offence?
Mr. Patten : That is a very interesting question, and I am glad that my hon. Friend has asked it. I had never considered the possibility. But the answer is surely yes, because anything raised on the Floor of the House is privileged.
Let us suppose, however, that that aggrieved member of the service, having approached the staff counsellor and the director-general and tried to get through to the Prime Minister, still--amazingly enough--felt aggrieved, and went public. In that case he would indeed be committing an absolute offence under clause 1.
Mr. McWilliam : Evidence on telephone tapping might well come from a member of my trade union, the National Communications Union. Would the individual concerned automatically become a notified person? If so, who the hell could he complain to?
The right hon. Member for Blaenau Gwent raised an important point about parliamentary privilege and what happened to Churchill in the 1930s. I do not propose to follow him into the history of the 1930s, because I have not his expertise. It is important to note, however, that the blanket provision of section 2 was in force then. This Bill, as well as containing a number of other narrowing
Column 1100provisions, will abolish the offence of receiving information, so anyone receiving information now would not be committing an offence. I cannot comment on the specific example given by the right hon. Gentleman because I do not know all the details, but members of the service, if they were breaching confidentiality, would be committing the absolute offence in the first part of clause 1. I am glad to learn that the right hon. Gentleman agrees with that interpretation.
Mr. Foot : What I am agreeing with is that this piece of legislation changes what was understood to be the case pre-1938, and makes it much more difficult for people to raise matters with Members of Parliament.
Mr. Frank Cook (Stockton, North) : On a point of order, Mr. Cormack. I wonder whether you would remonstrate with the garrulous rabble below the Bar. We cannot hear what is being said because of the noise issuing from them.
A Minister is a Crown servant. We shall come on the next set of amendments to whether notification is required, but let us assume that the Minister has been notified and thus comes under the legislation. If he then goes on to the Back Benches, he becomes an ex-Crown servant, but is still covered by the legislation. Let us suppose that he feels very strongly about something that has come his way. We are not saying that he should go to the police station and go through all the procedures. He would have an absolute right, as a Member of Parliament, to raise the issue on the Floor of the House. We are not going back to 1939 and the Duncan Sandys affair, which we wrote about in the Franks report because it was a factor in section 2. But what would happen to an ex-Minister who wanted to raise a great issue against his own Government or the Government of the day?
Mr. Patten : As the right hon. Gentleman says, we shall deal with notification on the next group of amendments. If that Minister was notified, he would be notified only about what he had learnt, under the then Official Secrets Act, while he was a Minister. He would remain notified in regard to the "secrets", to put it colloquially, that he had learnt during that period ; that is a lifetime duty. Anything that he learned thereafter would not be subject to the notification provisions. I cannot imagine the circumstances, but I suppose for the sake of argument we must imagine these hypothetical cases. If that ex-Minister had gone through all the routes, he could then come to the Floor of the House and speak with absolute privilege. If he speaks outside the House, he will fall foul of the absolute offence.
Mr. Patten : If he learns about such circumstances through legal routes from people outside the service and outside his period as a Minister, he would not be committing the absolute offence. The Committee knows that parliamentary proceedings are privileged. I stand to be corrected by the right hon. Member for Blaenau Gwent, but I understand that statements attributed to an hon. Member in Parliament cannot be used against a Member in a court.
Mr. Peter Archer (Warley, West) : Whether we have agreed or not, up to now I have understood the Minister. He says that anyone who has once been notified is covered for information that has come into his possession for the period of the notification. Where is that spelt out in the Bill?
In another of his telling speeches my hon. Friend the Member for Thanet, South spoke about the lifelong duty of confidentiality. He spoke about recent statements made in courts by learned judges on the application of civil law. But we are not here dealing with the civil law, which can operate before an event to stop it happening. We are dealing with the role of the criminal law in penalising offenders. We can look at that in greater detail during debate on the group of amendments about the public interest defence.
The question of the civil duty of confidentiality was considered in the Lords and the judgment was given on 13 October 1988. Lord Keith of Kinkel said on page 12 of his judgment :
"I regard this case"--
we all know the case that he was talking about--
"as having established that members and former members of the Security Service do have a lifelong obligation of confidence owed to the Crown. Those who breach it, such as Mr. Wright, are guilty of treachery."
That was the most telling judgment given in this area of the civil law. I have not yet come to the points raised by my hon. Friend the Member for Torbay (Mr. Allason) and by the right hon. Member for Plymouth, Devonport (Dr. Owen).
Mr. Aitken : I appreciate the Minister's selective use of the quotation. It is fair to say that we are arguing not about a duty of confidentiality but an absolute lifelong duty about which at least one judge, Mr. Justice Scott, said was not heard on this side of the iron curtain.
I should like to press my hon. Friend on one key point. Perhaps we could return for a moment to the BBC series "My Country, Right or Wrong". In that series former members of the Security Service talked in totally innocuous terms about their experiences in the Secret Service only in so far as they affected public policy issues such as the desirability of ministerial accountability, oversight and so on. Are we to understand from the
Column 1102Minister that in future distinguished former Crown servants such as Lord Dacre of Glanton, Lord Annan and Mr. Day will be guilty of a criminal offence?
Mr. Patten : That depends on whether they were members of the service at the time and whether they were notified. My hon. Friend has quoted one learned judge and I have quoted another, but I did not quote out of context what Lord Keith said. I shall repeat it. He said :
"I regard this case as having established that members and former members of the Security Service do have a lifelong obligation of confidence owed to the Crown."
That was the concluding judgment, and our proposals in the clause are fully consistent with it.
Mr. Richard Shepherd : That is a curious summary of the judgment. Perhaps my hon. Friend the Minister recalls that by a clear majority the Lords found other than the judgment that he has cited. Never at issue in front of them was the lifelong duty of confidentiality. In this debate we have cited Sir Leon Brittan's quote from them that the duty of confidentiality is correct and unexceptional. That is accepted. This whole testing debate is about the absoluteness of that duty. My hon. Friend the Minister serves himself ill by failing to address himself to the absoluteness of it in the light of assertions by judges in the context of our common law that it is inappropriate and wrong.
Mr. Patten : I used the word "assertions" because that was the word my hon. Friend used. I shall use the word "judgments" if that is what he prefers. These judgments have been made in civil courts. I explained earlier why I thought we needed the absolute offence. I hope that my hon. Friend paid close attention to that explanation. It will be in Hansard tomorrow for all who wish to read it. I shall now turn to the six matters raised by the hon. Member for Linlithgow. I shall try to reply to them as briefly and accurately as I can. His first point was about Desmond Morton. I think that the hon. Gentleman recognised that it was not sensible to speculate on the outcome of a case from the past about the effects that it might have in future in the context of the Bill. I think that the hon. Gentleman was good enough to say that. His second important point was about telephone tapping. I have given an explanation about that and perhaps on reflection he will be satisfied with it. He has given notice that he may return to the matter.
My hon. Friend the Member for Holland with Boston spoke about reporting to the police, as did the right hon. Member for Sparkbrook. I gave assurances about access to the police, which everyone in Britain should have. The fourth point of the hon. Member for Linlithgow echoed what the right hon. Member for Plymouth, Devonport (Dr. Owen) said about the right of Crown servants to justify disclosures. I think that this argument is about the public interest defence which will be debated later. I look forward to further contributions by the hon. Member for Linlithgow and the right hon. Member for Devonport in that debate.
The hon. Member for Linlithgow raised the matter of Gartside and Outram, but I cannot follow him down that