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Mr. Speaker : Order. I think it would be very unwise for the hon. Gentleman to pursue private conversations that he has had with me. If he has a complaint, I suggest that he comes to see me about it. I shall gladly deal with it, but not on the Floor of the House.
Mr. Powell : All right, Mr. Speaker, that may be so, but it is an important point of order. We accept responsibility in the Whips Office, but we do not want to be denied the opportunity to speak because we are in the Whips Office. You, Mr. Speaker, should be well aware of that, having been an Opposition Whip in the past. We do not expect to be denied the right to be called. I seek your ruling on whether Opposition Members who are Whips will be called on issues directly affecting them and on which they wish to make
representations. The Liberal Chief Whip was called yesterday, yet Opposition Whips were refused.
Mr. Speaker : I am not prepared to debate that matter with the hon. Gentleman. Every hon. Member is dealt with fairly, but Opposition Front Bench spokesmen should not expect to have the same precedence in debate as Back Benchers, who have a pretty rough life.
Official Secrets Bill
Committee [Progress, 25 January]
in the Chair ]
Mr. Roy Hattersley (Birmingham, Sparkbrook) : On a point of order, Mr. Walker. I am sure that you will agree that this is wholly appropriate to the Committee consideration of a Bill. When we came to the end of our deliberations last week, the Minister of State was pressed from both sides of the House to state the position of solicitors who might be consulted by men and women who believed--or, more important, had been told--that they were the victims of improper actions by the Security Service. The Minister of State gave what we believed to be a considered reply, which appeared in column 1109 of Hansard for 25 January. He said that the passing of such information to solicitors would be covered by what he described as "legal professional privilege." I have now received a letter from the president of the Law Society saying that that statement is simply untrue. [Interruption.] I revise my judgment : the letter says that it is inaccurate.
With your permission, Mr. Walker, I shall read what the president of the Law Society says about the position of men and women who seek advice from a solicitor having been told that they are the subject of improper activity on the part of the Security Service :
"It is not only members of the security services who would have difficulty in seeking legal advice : the difficulty appears to apply to any person who can commit the various offences under the Bill relating to unauthorised disclosure."
According to the president of the Law Society, men and women who may regard themselves as illegally treated by the security services are prohibited by the Bill from taking legal advice.
I do not wish to pursue the matter at any length today, as we have a fundamentally important debate ahead of us. I simply ask the Minister of State to assure us that, having given advice which appears in Hansard but which is categorically wrong, he will take the first chance he gets to correct that advice.
The Minister of State, Home Office (Mr. John Patten) : Further to that point of order, Mr. Deputy Speaker, the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) raises an issue of which I am not aware. He has not given me prior notice of the letter, nor have I had a copy of the letter from the president of the Law Society. If the right hon. Gentleman would be good enough to let me have a copy, I shall consider in detail what the letter says.
No. 2, in page 1, line 10, at end insert activities'.
No. 90, in page 1, line 13, at end insert--
(1A) For the purposes of subsection (1) above a disclosure is made with justification if the person making the disclosure has reasonable grounds for believing that it is necessary to make it to indicate the existence of crime, fraud, abuse of authority, neglect of public duty or a threat to public safety.'.
No. 81, in page 1, line 27, after first the' insert lawful'. No. 19, in page 2, line 24, after the' insert lawful'. No. 94, in page 5, line 23, after if', insert
other than for the purposes of consulting a solicitor in relation to any unlawful activities of the security or intelligence services'.
New clause 1-- Public interest defence (No. 1)
It shall be a defence for a person charged with an offence under this Act to prove that disclosure or retention of the information or article was in the public interest in that he had reasonable cause to believe that it indicated the existence of crime, fraud, abuse of authority, neglect in the performance of official duty or other misconduct.'.
New clause 4-- Public interest defence (No. 2)
.--(1) It shall be a defence for a person charged with an offence under this Act to prove that the disclosure or retention of the information, document or other article was in the public interest insofar as he had reasonable cause to believe that it indicated the existence of crime, fraud, abuse of authority, neglect in the performance of official duty or other misconduct.
(2) In the case of a Crown servant or government contractor charged with an offence under sections 1, 2, 3, 4, 6 or 8 of this Act subsection (1) above shall only apply if he has taken reasonable steps to comply with any established procedures for drawing such misconduct to the attention of the appropriate authorities without effect.'.
New clause 5-- Public interest defence (No. 3)
(1) It shall be a defence for a person charged with an offence under this Act to prove that the disclosure of information, document or other article for which he has been charged was in the public interest, having regard both to any damage actually caused by the disclosure and any benefit to the public interest from it ; or that he had reasonable cause to believe at the time of the disclosure that it was so in the public interest.
(2) In the case of a Crown servant, government contractor or person notified under section 1, the defence in subsection (1) above shall only be available if he has, without effect taken reasonable steps to comply with any established procedures for making such disclosures to the appropriate authorities.'.
New clause 8-- Disclosures where public safety is threatened ( ) It shall be a defence for a person charged with an offence under this Act to show that the disclosure or retention of the information, document or other article was in the public interest insofar as it revealed the existence of an imminent and serious threat to public health or safety, provided that effective steps to remove that threat had not been taken.'.
New clause 10-- Disclosure of evidence of fraud
It shall be a defence for a person charged with an offence under this Act to prove that the disclosure indicated the existence of fraud, corruption or the misappropriation of public funds which had been reported to the appropriate authorities without effect.'.
Mr. Dalyell : As clause 1 stands, the situation could arise in which a person would be automatically guilty of a criminal offence without any possibility of a defence of any kind if it was true that he made a relevant disclosure without lawful authority. The words "without lawful authority" are not defined and are unacceptably imprecise. They would be open to wide or narrow construction by the courts.
Column 441The primary purpose of amendment No. 91 is to avoid the potentially absurd situation in which, for example, a senior official was automatically guilty of a criminal offence because it was held that he had made a disclosure, that the courts might in future hold to have been done "without lawful authority". Amendment No. 91 seeks simply to introduce the words "or justification" after "lawful authority", so leaving it open for the courts to determine, according to the circumstances of the particular case, whether the disclosure was justified in the absence of lawful authority.
Justification must, of course, be defined and that is the purpose of amendment No. 90. In substance, it amounts to the same thing as some of the public interest defences proposed by the new clauses. Technically, however, amendments Nos. 90 and 91 are preferable, as they avoid the difficult situation where a judge has to explain to a jury the difference between a primary charge where the onus, as always, is on the prosecution, and a defence where the onus is on the accused. Amendments Nos. 90 and 91 ensure that the absence of authority, or justification, is built into the primary charge, clearly leaving the onus where it should be--always on the prosecution. The content of amendment No. 90 is, of course, open to discussion, but the principle is sound.
The amendment raises issues of fundamental importance to the House--the duty of Ministers to tell the truth, and the abhorrence felt by hon. Members on all sides, regardless of party if the House is deliberately deceived. We require that the truth be told to us, and not merely as a matter of personal ethics, for to deceive Parliament is a far greater offence than to deceive one's associates. It is an offence against the basis of our system of democracy. 4.15 pm
How do we in the House protect ourselves against this injury? We may cross- examine Ministers on the Floor of the House or in Select Committee. But if Ministers wish to choose to remain silent and refuse to justify their statements or to document their assertions, they do so ; and if they wish to prevent their officials from replying to questions, the officials do not reply.
Hon. Members will remember how many vital questions about the conduct of the Westland affair were never answered, either on the Floor of the House or before the Select Committee. I refer, just in passing, Mr. Deputy Speaker, to Sir Leon Brittan's appearance before the distinguished Select Committee on Defence. If I may be forgiven for saying so, I refer, also in passing, to the Prime Minister's answer to question No. 2 this afternoon. Do not be under any illusion that parliamentary questions provide any kind of effective scrutiny of legitimate issues.
This afternoon I had a substantial question on the Order Paper--not one of those open questions--but the Prime Minister was easily able to brush it aside because of the nature of parliamentary questions. I use that as an example of why it is necessary to have this sort of amendment.
How does the amendment protect us against injury? I believe that anyone reading our proceedings in Hansard of 25 January would be rather shocked that an officer of the security services who informed an hon. Member that his or her phone was being tapped illegally would commit an offence. By illegally, I mean without a warrant or any suggestion that it is required in the interests of national security.
Column 442Where the interception is done for purely a party political reason, how do we treat the officer who reveals such disgraceful behaviour? The Government have put before us a Bill that proposes that he or she be put in prison for as long as two years. The House should not accept that disgraceful proposition.
How does the Bill protect us from a Minister who tells untruths to the House? It does not protect us ; in fact, it protects the Minister. If a lie is exposed by someone who has been privy to the private discussions of those involved, the Bill punishes that person. He or she may be prosecuted, and cannot argue that the disclosure exposed was a deliberate deceit of the House, or that the disclosure protected the rights of the House to be told the truth.
Ministers know that if they sought to suppress such a disclosure by an injunction, they would have grave difficulty in securing it. They might obtain a temporary injunction, but ultimately there would be a full hearing. If the defendant showed that a disclosure revealed iniquity, the injunction would not be granted. That is how the courts have interpreted the civil law of confidence.
Hon. Members know that section 2 of the Official Secrets Act 1911 has been used to punish those who have exposed the dishonesty of Ministers, and have been caught acting essentially as deep throats. It has been used by the Government. I will say more about it in relation to the case of Clive Ponting, but not at inordinate length. This is a non-party matter. The Sunday Telegraph trial of 1970 was brought by a Labour Attorney-General over disclosures showing that Parliament had been deceived by Ministers of that Government. It would be better for the hon. Member for Thanet, South (Mr. Aitken), if he catches your eye, Mr. Deputy Speaker, to deal with that case in greater detail, but I recognise that I do not speak on a party basis.
I deliberately mentioned both cases, because it is not a party political matter. The use of the law in this way and the use to which the new Bill may so easily be put are offences against the House as a whole. I crave the indulgence of my colleagues to say a little about the case of Clive Ponting. In a sense, I have seen the Bill as an anti-Clive Ponting jury Bill. We may not have had this debate had it not been for the Ponting case. Other than when there were heavy three-line Whips, I attended the 11-day hearing at the Old Bailey. I speak against that background because there are lessons to be drawn. The Clive Ponting case was unique and it strongly influenced the Government's approach to replacing section 2 of the Official Secrets Act 1911. In the public mind, whatever Governments may say about the unanimous verdict of not guilty, the Ponting trial jury clearly established that the interests of the state are not necessarily the same as the interests of the Government of the day. It also established that Clive Ponting's action of disclosure could be successfully defended in court under section 2(1)(a) of the Official Secrets Act 1911, which states that it is not a misdemeanour to communicate information to
"a person to whom it is in interest of the State his duty to communicate it".
In other words, in such circumstances a civil servant can claim a public interest defence.
As hon. Members know, the Government were extremely displeased with the outcome of the Ponting trial.
Column 443From the Official Secrets Bill it has become clear that the Government are intent on reversing the precedents that were established in the Ponting case.
Mr. Nigel Spearing (Newham, South) : Does my hon. Friend agree that the document that he received from the gentleman he mentioned suggested that the Government were economical with the truth in the Foreign Affairs Select Committee? It revealed that any extension of what he called "our joint position"--that is, the Government's position--would reveal what I consider to be at least a disreputable diplomatic manoeuvre. Might it not be an even stronger case to say that if a Labour Government embarked on a questionable and controversial exercise, perhaps controlled by three leading members of the Cabinet, Conservative Members might agree that Mr. Ponting's action was the right thing in the national interest? Is that not the objective test that we should apply, and does it not support the argument?
Mr. Dalyell : I am careful on this subject. Before giving blank assent to what my hon. Friend has said, it would be more appropriate to read Hansard. I think that I agree with that proposition. I think that I know Conservative Members' views on the behaviour of Mr. Ponting, but I say one thing in riposte. Mr. Ponting acted as he did because he was outraged at the treatment of Parliament. I speak for myself, and I believe that that was his motive.
Mr. Ray Whitney (Wycombe) : On the behaviour of Mr. Ponting--I hope not to detain the hon. Gentleman too long--does he agree with the assessment in Mr. David Hooper's book? There is no question that Mr. David Hooper supports the Government on these matters. He said that the odds were long against Mr. Ponting being acquitted at the trial. He went on to say :
"However, Ponting's choice of Dalyell, who was neither his constituency MP nor a Privy Councillor and had form for leaking, his attempt to remove all identifying marks from the documents, his alleged untruthfulness when first asked whether he was the culprit, his failure to exhaust Civil Service remedies for his grievances, and his attempts to blame others were better explanations of the odds." Will the hon. Gentleman comment on that?
Mr. Dalyell : From a sedentary position, the Minister asks "Why not?" Career matters and a human factor are involved. There are real problems in using the usual channels. I think it is slightly egregious to say that the Cabinet Secretary is always available.
Mr. Norman Buchan (Paisley, South) : On the specific point about Mr. Ponting speaking to Sir Robert Armstrong, he was a Cabinet Secretary who was quite prepared on a later occasion to accept that he was being "economical with the truth". Was there any reason for Mr. Ponting to think that the truth would necessarily have been delivered had he spoken to Sir Robert?
Mr. Dalyell : That is a hypothetical or rhetorical question. I should like to reply to my hon. Friend who made a friendly interruption and to the hon. Member for Wycombe (Mr. Whitney). I read one chapter of Mr. Hooper's book, but not the one which the hon. Gentleman quoted. I did not read the whole book. The hon. Member for Wycombe quoted Mr. Hooper as saying that Dalyell behaved in such a way. Dalyell behaved quite properly on that occasion, because I did not go to the press. I kept it as a proceeding in Parliament. I went frankly to Anthony Kershaw, who was the Chairman of the Select Committee. I was naive enough to imagine that he would be schocked at how his Select Committee had been deceived. It was Kershaw's responsibility. He immediately went to the right hon. Member for Henley (Mr. Heseltine). I did the proper thing, because that kept it as a proceeding in Parliament. I do not know whether it weighed with the Ponting jury, but it certainly was a factor.
Mr. Chris Smith (Islington, South and Finsbury) : As the constituency Member for Clive Ponting, I put two brief propositions to my hon. Friend. First, it was perfectly understandable and justifiable that Mr. Ponting chose my hon. Friend as the person to send the information to. He knew that my hon. Friend had been asking serious questions about the matter germane to the information that he had. It was because of those questions and because of my hon. Friend's known interest in the matter that he chose that route of disclosure. That seems to me to be an entirely justifiable course of action.
Secondly, it was quite clear that, when called upon to come to a verdict at the Old Bailey, the jury rapidly and unanimously rejected the clear advice that they had been given by the judge that the interests of the state spelt out in the existing law were exactly equal to the decisions of the Government of the day. The jury rightly rejected that advice from the judge. That surely is the nub of the point that my hon. Friend is making.
Mr. Eric S. Heffer (Liverpoool, Walton) : Will my hon. Friend not confine himself solely to the case of Mr. Ponting? I agree that Mr. Ponting was right and that the jury was right. But this is a much wider issue involving the rights of all people, whether they are civil servants or others, who will be affected by the Bill. The nitty-gritty of what happened in relation to Mr. Ponting is agreed. I think most hon. Members with any intelligence accept that the jury was right. I hope that my hon. Friend will come to the wider issue of all who may be affected by the Bill. I accept that Mr. Ponting's case was of great importance, but it is not the only issue involved.
Mr. Dalyell : I accept that it is not the only case. There are many other hon. Members in the Chamber who are supremely qualified to talk on general issues. I think that I am justified in detaining the Committee a little longer on what happened at the Old Bailey, because there are important lessons to be learnt for the amendment from those proceedings.
The Government intend to make it impossible for a civil servant ever again to claim a public interest defence should he reveal privately to a Member of Parliament that
Column 445Ministers are intentionally misleading Parliament. This has never been tested in the higher courts or by the Law Lords. I see my right hon. and learned Friend the Member for Warley, West (Mr. Archer), the former Solicitor-General, nodding his head. The Bill raises a crucial question. Is the security of the state enhanced by preventing Parliament from being informed when it has been misled intentionally by Government Ministers? As Mr. Bruce Laughland, QC for Clive Ponting, said :
"This is not a case about spying. It is a case about lying or misleading Parliament."
In view of the constitutional importance of the Ponting case, it is worth recalling certain significant aspects of the highly political trial, particularly the extraordinary events of 6 and 7 February 1985 which were not fully publicised and which revealed clearly what the Government were about.
The Government did everything in their power to secure the conviction of Clive Ponting. In The Guardian of 13 September 1984 there had been a reference to a meeting of Whitehall information officers at which the Prime Minister's press secretary, Mr. Bernard Ingham, was reported to have said that the Government were quite set on prosecution ; indeed, it was hoped that an appropriately severe member of the judiciary would be on hand to hear the case. Mr. Ingham was reported to have named a couple of judges whom he thought suitable. It was also said that he regretted that Judge Jeffreys had passed on. Then the Government ensured that the trial jury was vetted, even though, as Mr. Roy Amlot QC, prosecution counsel, said on the first day of the trial :
"It is not suggested that the disclosure in fact damaged national security."
I think I have the assent of my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees) on that.
At lunch time on Wednesday, 6 February 1985--day 8 of the trial--some extraordinary and revealing events started to take place in court No. 2 at the Old Bailey. Just before 1 o'clock, the judge, Mr. Justice McCowan, sent the jury home until 10.30 am the next day as the afternoon was to be taken up with legal submissions relating to legal definitions of the offence and the terms of the judge's pending summing up to the jury. The press and the public were present throughout the afternoon and the judge did not put any reporting restrictions on the events that took place.
As a consequence The Observer of 10 February 1985 carried an article by David Leigh on the afternoon's proceedings. It was the only newspaper to report those events, although Ivan Rowan in the Sunday Telegraph of the same date wrote :
"Because the jury was out of court, I cannot tell you what was said. This particular afternoon--it was Wednesday--turned into an absolute thriller, with a double-twist at the very end that even Agatha Christie never equalled."
Because the public and the press were allowed to remain in court that afternoon, they were given a remarkable insight into the behind-the-scenes working of the supposedly non-political trial. The first bombshell was dropped immediately before lunch, just after the jury had left the court. The judge indicated that if he accepted the prosecution's submission, he would have no alternative but to direct the jury to convict. After lunch, detailed discussions took place on the meanings of the two key words in the trial--"duty" and "state". The judge told the prosecution counsel, Mr. Amlot, that if he, the judge, accepted the prosecution's
Column 446definition of the interest of the state, that is, that this was synonymous with the policies of the Government of the day, as he was inclined to do, he would have no alternative but to direct the jury to convict. Mr. Amlot responded :
"I would be very reluctant to seek to persuade you to a direction to convict".
The judge repeated his opinion. Mr. Amlot stressed his point by saying, in very positive terms :
"I am very reluctant in this of all cases that you should finish up directing the jury to convict".
The Home Secretary shakes his head ; he will no doubt make his own speech, but I think that there is an important point here. It reveals that Roy Amlot had very grave doubts about precisely what we are now being expected to do as a House of Commons. We look to the Home Secretary for an explanation of the difficult problem of direction of a jury.
Mr. Justice McCowan pointed out that it would be very difficult for a judge to invite a jury to convict if the prosecution counsel for the Crown advised otherwise. Mr. Amlot asked if he could reflect on the matter overnight. The judge said that he would prefer a short adjournment that day. That was agreed. Mr. Amlot hurriedly wrote a note to Sir Thomas Hetherington, the Director of Public Prosecutions, who was sitting behind him, as he had been throughout the trial. The DPP quickly left the court, almost certainly to seek guidance ; at least, that is what I thought. Meanwhile, Mr. Amlot continued by pointing out that it would be unconstitutional for a judge to direct a jury to return a verdict of guilty.
Sir Peter Hetherington returned to the court, and at 4.25 pm the court adjourned for 10 minutes. The judge also left the court. When the judge returned, Mr. Amlot stated :
"Even if the ruling is in our favour, we do not ask for a direction to convict."
Mr. Justice McCowan said that after considering certain legal authorities, he had changed his mind. For a trial which purported to be non-political, the events of the afternoon of Wednesday 6 February had been most revealing.
The next morning, prior to the return of the jury, the legal submissions continued and were mainly concerned with the meaning of the key words "duty" and "state". During those submissions, the judge pointed out that the jury was not the body to decide what the interest of the state should be.
The jury returned to the court just after 11 am and the final speeches for the prosecution and defence were delivered. Mr. Bruce Laughland, the defence counsel, concluded with these words : "We say that he"--
that is Clive Ponting--
"was faced in good conscience with an obligation to do his duty, a duty which was in the true interests of the State and that it was one from which he did not shrink. If what he did was a crime for which he renders himself liable for punishment, you know it could be a licence for Ministers to withhold from Parliament information with the tame acquiescence of their Civil Servants and so to infringe our liberties. And, if what he did was a crime in English law, you say so. But if it is, God help us, because no government will."
Column 447It is up to the House to reflect on what a Government would do in such a situation.
Mr. Archer : So that we can be clear about what my hon. Friend is saying, does he agree that there were two quite separate legal issues? The first was whether the public interest question should be left to the jury and the second was whether it could ever be right for a judge to direct a jury to convict--which, of course, in the end the judge did not. Does my hon. Friend agree that the real indictment of the law was that the jury, in effect, had to fly in the face of the judge's direction on law to arrive at a verdict which they found acceptable? That means that the House should look at the law again.
Mr. Dalyell : My right hon. and learned Friend is one of my oldest friends in the House, in both senses of the word. He is a distinguished lawyer and I am a layman. I shall not take issue with him, and I shall accept those propositions.
Mr. Justice McCowan's summing-up appeared to be aimed at dismissing the case for the defence. The jury retired at 11.15 am on the last day of the trial, and returned at 2 pm to deliver a unanimous verdict of not guilty.
Immediately after the verdict was announced, Mr. Amlot shook hands with Mr. Laughland in a gesture that was not in accordance with normal court procedure--so I am told. They were warm and generous congratulations.
That was clearly a most important verdict. It was the jury who decided the outcome of the case. Without a jury, the outcome would have been very different. The unsuccessful attempt by the Government to establish that
"the interest of the state"
was invariably the same as
"the interest of the Government of the day"
has underlined the importance of trial by jury in certain cases. Nobody would want to put national security at risk by revealing genuine state secrets, but where national security is not involved, it is a misuse of the law to try to use it to protect the Government from embarrassment by preventing disclosures to Members of Parliament that Ministers are misleading Parliament. It cannot be right that the last resort of a civil servant to inform Parliament of serious wrongdoing by Ministers is to be withdrawn by a new law that will put him in gaol for so doing. That is no way to protect the security of the state ; nor is it the way to protect parliamentary democracy. It is clear that something extremely serious is about to happen. If a Government can succeed in passing a law that makes it a crime punishable by imprisonment for a civil servant to inform a Member of Parliament of serious malpractices by Ministers, the door will be opened to enable the destruction of the sovereignty of this House and this Parliament. I see that my right hon. Friend the Member for Blaenau Gwent (Mr. Foot) nods his head. I believe that there is a good deal of agreement among serious people about this matter. 4.45 pm