House of Commons Hansard Debates for 25 Jan 1989

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route because at that stage it was a matter for the civil law and was a civil case. The Bill does not change the operation of the civil law but purely alters the operation of the criminal law. There is a well-recognised principle that a person to whom an iniquitous matter has been communicated will always be free to report it to the proper quarter, usually the police. Nothing in the Bill and, funnily enough, nothing in the Official Secrets Act 1911 affects that principle. Several Hon. Members rose --

Mr. Patten : I am going through a list of answers to six questions which the Committee wishes me to answer. When I have done that, I shall give way. As hon. Members have said, these questions need to be answered in full.

Mr. Archer : The courts have regarded it as important that the civil duty of confidentiality should be subject to the exception that there is no confidentiality in iniquity. Is the Minister saying that notwithstanding the fact that the Government want to impose a criminal sanction without any such exception?

Mr. Patten : There are much fiercer criminal sanctions under the 1911 Act than are proposed in this Bill. The letter was signed by Lord Croham and a number of others, including Sir Patrick Nairne, who is a constituent of mine and a most distinguished public servant who was at one time permanent secretary at the Department of Health and Social Security. The description in the letter is not new. I believe that Sir Douglas Wass made at least some of those suggestions to the Treasury and Civil Service Select Committee about three years ago. The description in the letter of the existing procedures is not up to date or accurate. It was subsequently modified to make clear that the head of the Civil Service would be prepared to hear personally appeals from officials who had followed the earlier stages of the procedure. I am advised that the Treasury and Civil Service Select Committee has said, in one of its reports, that there should be a trial before a system of external review is reconsidered.

Mr. Dalyell : Can we be quite clear as to what the Government think is inaccurate about the letter of Lord Croham, Sir Douglas Wass, Sir Patrick Nairne and Sir Frank Cooper?

Mr. Patten : I said that it was inaccurate only to the extent that the description of the procedures is not up to date. The procedure was modified in 1985 to make it clear that the head of the service would always be prepared to hear personally appeals from officials who had followed the earlier stages of the procedure. That is where the difference lies.

I turn now to the important amendment and new clause tabled by my hon. Friend the Member for Torbay (Mr. Allason) which was clearly supported by a number of hon. Members, including the right hon. Member for Devonport. My hon. Friend the Member for Torbay recognised that retired members of the security and intelligence services cannot, without authority, be free to disclose any information that they have as members of the service. That is something on which we all agree.

However, my hon. Friend is concerned that there should not be any unnecessary restraint on the ability of

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former members to publish with authority. His amendment proposes a mechanism for considering such publications. The necessary procedures are already in place. It is not desirable to accept a provision which could give a group of people outside the service the right to decide whether vital operational and other secrets should be published at large. Our intelligence service will be affected only if they restrict control over what is written by their members and former members. The duty of confidentiality cannot be an option ; it must be a certainty. It is vital to the successful functioning of the services. Members and former members of the service know that they cannot publish material about their work without authority. On procedure, I have little to add to what I said on Second Reading. It will not come as any surprise to those concerned to know that authorisation to members and former members to disclose information about their work will be rare and given only in exceptional circumstances. Again, my hon. Friend the Member for Torbay wishes to have those outside the ring of secrecy act on those within the ring of secrecy. They would either not know enough to make the judgments or they would have to be brought within the ring of secrecy and could not act as an independent, outside adjudicating body. If a former member ignores his or her obligations to the Crown and does not seek authorisation, or proceeds without receiving it, it must be right for the Government to consider action in the courts to enforce the fundamental principle of the duty of confidentiality. That is now well understood and, on that basis, I hope that my hon. Friend and the right hon. Gentleman will not press their amendments and new clause to a vote.

Mr. Corbett : It would be churlish not to recognise immediately that the Minister has done his best. There have been 19 speakers in this debate from the Back Benches. In various ways, 16 have opposed what the Minister, on behalf of the Government, is suggesting. Three of his Back Benchers have spoken, with some brevity, in favour of it.

I join in the general welcome to the hon. Member for Epping Forest (Mr. Norris). If it had to be a member of his party who won Epping Forest, it could not have been a better one. I hope that the hon. Member for Wyre Forest (Mr. Coombs) will accept it when I say that I did not mean to be offensive to him. I understand the difficulties of hon. Members who have to sit for long periods waiting to speak, but, none the less, this has been an extremely important debate and, as my hon. Friend the Member for Newham, South (Mr. Spearing) said, one of the highest calibre debates through which it has been our privilege to sit.

The hon. Member for Caithness and Sutherland (Mr. Maclennan) reminded the Minister that, in circumstances where the weight of opinion from both sides of the Committee has been so critical and hostile to what the Government propose, it behoves the Minister to tell his right hon. Friend, when he can lay hands on him, what happened during this debate and to encourage him and his colleagues to think again.

As was said by some of my hon. Friends and by the right hon. Member for Plymouth, Devonport (Dr. Owen), something has happened to the House of Commons. The Government can be like stone and totally deaf to a variety of views from both sides and all quarters, mostly hostile to

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what they are about, yet arrogantly believe that they can snap their fingers and get their supporters to trot meekly and silently through the Lobby.

It is significant that the Minister of State, despite many and repeated invitations, failed to answer the extremely important point raised by my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) about him being told by a serving member of the security or intelligence forces that his telephone is being illegally bugged or that his house is being, or has been, illegally entered. We have cleared up one point, which is that my right hon. Friend, or any hon. Member, can safely stand up in this place and reveal that under the mantle of parliamentary privilege. That is fine. We have also established, as those of us who had read the Bill rather than the press release knew, that the member of the security or intelligence forces who told my right hon. Friend of any illegality, commits an absolute and total offence and would find himself or herself in prison.

The Minister of State has not said--I hope that he will do so, because this is the Committee stage of the Bill and we ought to know--what will happen when either a Member of Parliament or a member of the public, faced with that information, thinks, "My God, I shall have to do something about it. I must get hold of a solicitor." There is no answer to what happens then. We can only infer that the passing on of that information to a solicitor is an offence under the Bill.

Mr. Gorst : His alternative is to go to a priest and confess it to him, when he would also be committing an offence.

Mr. Corbett : I am grateful to the hon. Gentleman. I thought that he was trying to find a bolthole for the Minister and that perhaps priests should be excluded. However, it is a serious point. That could be another means of landing that person in trouble.

Mr. Geoffrey Dickens (Littleborough and Saddleworth) : Will the hon. Gentleman give way on the same point?

Mr. Corbett : We are pleased that the hon. Gentleman is joining in the debate, so I shall give way to him.

Mr. Dickens : Correct me if I am wrong, but I think that the public interest defence, whereby good is done by a disclosure, is a perfect defence and that the Director of Public Prosecutions would never bring a case against such a person. Since time immemorial this Chamber has always been filled with Members who are concerned about the views of Government, but there are hundreds of Members in their offices who are happy about what the Government are doing. 9 pm

Mr. Corbett : The Committee will welcome the hon. Gentleman's first remarks, but he is two sets of amendments too early. As for his second point, had he been here earlier he would have heard at least one of his hon. Friends make the point that in private conversations many Conservative Members are deeply unhappy about the proposals. This is a House of Commons matter. We represent the people who sent us here to work against the arrogant, vested interests of the Executive.

The reason why the Minister is in such trouble--and it is obvious to him-- is that he is seeking to lay upon

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members and former members of the security and intelligence services, itinerant Government contractors and their named staffs and groups and classes of such people a lifelong gag and a lifelong duty of silence. We are being told that when the Government say, "This is secret," it will remain a secret for ever--not just to the grave but, as my right hon. Friend the Member for Sparkbrook demonstrated, even beyond the grave and into the next world. The effect will be to pass that lifelong duty of confidentiality to other members of the family who have only a family connection with the person concerned. That is what has got the Government into trouble.

Another curious aspect of the Government's proposals is that over the years and under successive Governments the so-called lifelong duty has been only selectively applied. Harry Pincher, writing under the name of Chapman Pincher, could be "done" under this Bill for the books that he has written about spooks and spies. He received the information, knowing that it could only have been given to him on an unauthorised basis. Those who have read the books may wonder whether that was the case. Some or many of the leaks to Mr. Pincher that found their way into his books or into headlines splashed across the Daily Express may have been authorised leaks, in the sense that the information was given to him by highly placed people in the security and intelligence service who wanted to peddle a particular line. It would be understandable if someone in MI5 or MI6 got hold of Mr. Pincher, suggested a quiet drink in a country pub or a walk, seemingly aimlessly, along the bank of a quiet river on a Sunday afternoon to deliver a message that what had been alleged about incompetence in the service was not so and that the so-called facts were this, that and the other, the better to defend the good name and reputation of the service. It is conceivable that that is how many of these things happened. There is another twist. Mr. Pincher could not know whether what was being said was true. The version would certainly collide with the earlier version but someone might be setting Mr. Pincher up.

As to the suggestion of the hon. Member for Torbay (Mr. Allason) of a publications review board, it would have been better had he made it clear that he is not suggesting a review board in the sense that following publication of a book the board would review it. The hon. Gentleman shakes his head and confirms that. It would be more in the business of looking through manuscripts or perhaps talking to authors before they started to prepare the manuscript.

The hon. Gentleman explained only that the board would have a chairman and three members appointed by the Home Secretary. He did not indicate who the members were likely to be. I should think that some of them would be old spooks called in from the field, selected Gower street warriors or the lately retired from the shadowy departments of Whitehall and Queen Anne's Gate. I do not think that a Conservative Home Secretary would stop the first four people he met in the street and ask them to make up the publications review board. In any event, I wonder how much good a review board could do. The decision would be left to nameless men ; I must point out to my hon. Friends that they are bound to be fellows because fellows are always given these jobs. Nameless men would make decisions behind closed doors on the basis of criteria which the Minister of State would tell us could not possibly be published because they were secret.

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Another point touches the heart of the Government's claims about the lifelong duty of confidentiality. Are the Minister and his colleagues seriously arguing that former spies are no longer able to make sensible judgments based upon their experience about what might or might not cause serious injury to the interests of the nation? On leaving office do spies suddenly become totally irresponsible in these matters? I do not believe it. Whatever criticisms my right hon. and hon. Friends and I may have of the security and intelligence services, I hope to God that they are not staffed by people that the Minister thinks would behave in that manner once they have retired. We are in trouble if that is so. That is one strong foundation on which the Government are building their case.

Mr. Dalyell : If my hon. Friend will allow me to support his argument, is it not a fact that Anthony Cavendish wrote his book in order to be fair to the late Maurice Oldfield? Government sources had cast a slur on Oldfield and Cavendish wrote the book to protect his old friend.

Mr. Corbett : My hon. Friend has illustrated the point extremely well, and the hon. Member for Aldridge-Brownhills (Mr. Shepherd) made a similar point. The Minister must not pretend that he is drawing lines. We are the people who want lines drawn. The Minister does not want to draw any lines because he wants anybody who has been involved, whether only up to his ankles or to the top of his head, not to say a word about it, under any circumstances, to anybody, even beyond the grave. That is why we get into difficulties.

Let us suppose, Mr. Cormack, that a former member of the security or intelligence services was engaged in covert operations in the Soviet Union in the 1960s, which were aimed not only at collecting sensitive information of possible intelligence use about intentions, but at trying to foment industrial and political unrest, touching on what one might call the economic well-being of that nation. Are the Government seriously suggesting that a former spy who has been engaged in such work and who wanted, 20 years later, to write about it would not hesitate, if only for a moment, and decide that his story could not be told?

Is it being suggested that someone who had had that experience would be careless about what would certainly follow if his story was published? He would, surely, decide that it should not be published, not to protect the necks of those in Whitehall, but because he would realise immediately that certain and lasting danger would be caused to relations between the Soviet Union and the United Kingdom and its allies. If the Minister is asserting that it is even remotely possible that such a person would decide to publish, he is insulting the integrity of those who have worked in the security and intelligence services.

Mr. Teddy Taylor (Southend, East) : I accept that point. Would the hon. Gentleman agree, however, that the high standards of these fine people can often be seriously affected if they are offered vast sums of money by some of the irresponsible papers and book publishers? Will he accept--and I voted against the Bill for reasons that he knows--that the danger of allowing a degree of liberality is that he is not talking about freedom, but the freedom to make a great deal of money irresponsibly?

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Mr. Corbett : I may disappoint the hon. Gentleman, but I do not think that people who work in these services are open to such temptation. I am being open about that and I should like to think that my view is shared generally in the Committee. If I am wrong such people should never have been working in those services in the first place. I know that it is difficult to pull out such information at interviews, but I expect and assume--and I am sure that I shall be corrected by several Conservative Members if I am wrong--that the greatest care is taken by those who recruit on behalf of the security and intelligence services.

I must say to the hon. Member for Torbay that I am left with the impression that the board that he proposes would not be simply a publications review board but, because of the way in which it was made up, it would turn into an official publications review board and the Government would still be left in the position of deciding what should be published. The amendments tabled by some of his hon. Friends are a better proposition, although I acknowledge that his proposal is far better than anything on offer from the Government. I started by saying that the Minister had done his best and I feel that I may not have been fulsome enough in my praise. We want to proceed to a vote on amendment number 71--in case that news has not reached you, Mr. Cormack--but I must say first to the Minister that immediately the debate is over tonight, I shall make it my business to nominate him for the Denis Norden Boy-Stood-On-The-Burning-Deck Award 1989.

Mr. Richard Shepherd : I should like to make just one observation on the Minister's response to the amendments and new clause tabled by my hon. Friends and the right hon. Member for Morleyy and Leeds, South (Mr. Rees). The House is confronted with the proposition, mounted by the Minister through clause 1, that there is an absolute duty of confidence and that there can be no countenancing of any circumstances in which the duty will not be absolute. My hon. Friends, and the right hon. Member for Morleyy and Leeds, South and myself want to be helpful but "absolute duty" is manifestly preposterous. We have tried to introduce the concept that there must be some test of reasonableness.

9.15 pm

My hon. Friend the Minister of State did not address himself to the concept of triviality. Is there not a piece of information so trivial that it does not require the mounting of a criminal prosecution under the "absolute" assertion? That is one side of something that becomes more serious. We have been confronted with the "flat earth" approach of the "absolute" assertion. One almost felt that one was in the presence of a 12th century geographer who had discovered that the world was flat. Unfortunately, we live in a different century and the world is round.

We want to induce some help for the Government because their proposition makes our party and the Government look ridiculous by saying that in all circumstances every piece of information revealed must give rise to an absolute criminal offence. We shall certainly seek to divide the House also on the new clause.

Mr. John Patten : I am sorry that I was unable to oblige my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd). I have listened carefully to his arguments and he has listened to mine. We simply disagree on the important issue of disclosures to solicitors. If a person

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wishes to consult his or her solicitor as to what remedy he or she may want to have in respect of information received, such as his or her telephone being tapped, of course that person can do so because a communication between a person and his or her lawyer cannot form the subject matter of a prosecution against that person because he is covered by legal professional privilege.

Mr. Hattersley : Heaven knows, I do not want to prolong the debate and I am even more reluctant to ask the Minister of State to speak again, but to say that the solicitor's relationship with his client is covered by professional privilege is to imply that it is a privilege that transcends an Act of Parliament--and that is simply nonsense. I assure the Minister of State that no part of the Bill allows a client to consult a solicitor in the terms that I have described. [Interruption.] The Minister may be muttering that it does not have to be in the Bill, but if the Bill states that it is an offence to consult anyone except those who are named, and if a solicitor is not named, it does not seem any great flight of logic to assume that solicitors are ruled out. I do not see how the Minister of State--even after his performance today--could possibly argue what he argued a moment ago.

Mr. Aitken : I shall detain the House for only a few seconds but I should like to press the extraordinary ministerial assertion that we have just heard. It simply cannot be true that the doctrine of absolute lifelong confidentiality as laid down in the Bill can suddenly be changed in a wind- up speech by saying that there is a privilege for solicitors which transcends the statute--

Mr. Archer rose --

Mr. Aitken : I happily give way to the former Solicitor-General.

Mr. Archer : I am grateful to the hon. Gentleman for giving way. Does he agree that solicitor-client privilege goes not to criminal liability, but to evidence?

Mr. Aitken : The right hon. and learned Gentleman makes my point for me. We simply cannot accept the assertion that has just been made.

I should like to ask my hon. Friend the Minister of State one final question. He could have dealt with quite a few of the points that have been made tonight about trivia and solicitors by referring to the provision that the Attorney-General's fiat is necessary before a prosecution can commence. At least that provision would give some safeguards. I am not at the Dispatch Box and I am not a Minister, but--

Mr. Corbett : The hon. Gentleman very soon will be.

Mr. Aitken : I am grateful to the hon. Gentleman for that--it would be a triumph of hope over experience.

At least I can see one let-out for some of the absurdities that we have heard. It could be said that solicitors, trivia, and BBC radio programmes dealing with public policy could be stopped from the statutory doctrine of absolute confidentiality by the use of the Attorney-General's fiat. That is the one argument that might make sense and it has not been deployed. Has my hon. Friend the Minister forgotten it or am I wrong? Will he answer that point when he returns to the assertion of privilege for solicitors, which is quite mysterious?

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Mr. Maclennan : We listened to the Minister's reply with dismay. He failed to deal with the central question raised by the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) and the hon. Member for Aldridge-Brownhills (Mr. Shepherd) about revelation of iniquity. If the clause is passed unamended, the people of this country will have to rely on members of the Security Service breaking the criminal law to protect them from iniquity of which they are aware but which it would be an offence to reveal. In his reply, the Minister opened his mouth and out gushed silence.

Mr. Andrew F. Bennett : On a point of order, Mr. Cormack. Will you give the Committee some guidance about how to vote on the amendments? As I understand it, a request has been made to vote on amendments Nos. 71 and 14. Will you confirm that we are able to vote on amendment No. 71 now but that we shall have to debate the next group of amendments before voting on amendment No. 14?

The Temporary Chairman : The hon. Gentleman is a master of procedure and has answered his own point of order.

Question put, That the amendment be made :--

The Committee divided : Ayes 215, Noes 263.

Division No. 51] [9.21 pm

AYES

Abbott, Ms Diane

Aitken, Jonathan

Allason, Rupert

Allen, Graham

Anderson, Donald

Archer, Rt Hon Peter

Armstrong, Hilary

Ashdown, Rt Hon Paddy

Ashton, Joe

Banks, Tony (Newham NW)

Barnes, Harry (Derbyshire NE)

Barnes, Mrs Rosie (Greenwich)

Barron, Kevin

Battle, John

Beckett, Margaret

Beith, A. J.

Benn, Rt Hon Tony

Bennett, A. F. (D'nt'n & R'dish)

Bermingham, Gerald

Bidwell, Sydney

Boateng, Paul

Body, Sir Richard

Boyes, Roland

Bradley, Keith

Bray, Dr Jeremy

Brown, Gordon (D'mline E)

Brown, Ron (Edinburgh Leith)

Bruce, Malcolm (Gordon)

Buchan, Norman

Buckley, George J.

Caborn, Richard

Callaghan, Jim

Campbell, Menzies (Fife NE)

Campbell, Ron (Blyth Valley)

Campbell-Savours, D. N.

Canavan, Dennis

Cartwright, John

Clark, Dr David (S Shields)

Clay, Bob

Clelland, David

Clwyd, Mrs Ann

Cohen, Harry

Coleman, Donald

Cook, Robin (Livingston)

Corbett, Robin

Corbyn, Jeremy

Cousins, Jim

Cox, Tom

Cryer, Bob

Cummings, John

Cunliffe, Lawrence

Cunningham, Dr John

Dalyell, Tam

Darling, Alistair

Davies, Rt Hon Denzil (Llanelli)

Davies, Ron (Caerphilly)

Davis, Terry (B'ham Hodge H'l)

Dewar, Donald

Dixon, Don

Dobson, Frank

Doran, Frank

Douglas, Dick

Dunnachie, Jimmy

Eastham, Ken

Ewing, Harry (Falkirk E)

Ewing, Mrs Margaret (Moray)

Fearn, Ronald

Fields, Terry (L'pool B G'n)

Fisher, Mark

Flannery, Martin

Flynn, Paul

Foot, Rt Hon Michael

Foster, Derek

Foulkes, George

Fyfe, Maria

Galbraith, Sam

Galloway, George

Garrett, John (Norwich South)

Garrett, Ted (Wallsend)

George, Bruce

Gilbert, Rt Hon Dr John

Gilmour, Rt Hon Sir Ian

Godman, Dr Norman A.

Golding, Mrs Llin

Gordon, Mildred

Gorst, John

Graham, Thomas

Grant, Bernie (Tottenham)

Griffiths, Nigel (Edinburgh S)

Griffiths, Win (Bridgend)

Grocott, Bruce

Hardy, Peter

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