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Mr. Spearing : I want to make one point absolutely clear. It might be interpreted from my hon. Friend's speech that the information Mr. Ponting passed to him was gratuitous, in that it revealed something that otherwise was not known, which it did. Does he not agree, however, that in this case the importance of that document was that
Column 448the Select Committee had specifically asked for certain information, and that the document that my hon. Friend received showed that the draft replies to those questions would be such as could mislead the Committee? In other words, it was revealing not just that Ministers were misleading the House, but that they were intending to mislead in relation to specific questions asked by a Select Committee of the House.
Mr. Dalyell : My hon. Friend, along with Ian Mikardo, put in an enormous amount of work on their Foreign Affairs Committee minority report covering the events of 1 and 2 May 1982. My hon. Friend knows a great deal about this matter, and I accept his proposition, which raises an important point. When my hon. Friend makes these interventions, he does so with considerable detailed knowledge. The Bill would prevent Parliament from being informed of such malpractices and, therefore, prevent Parliament from exercising its power to investigate and restrain such wrongdoing and would leave the continuation of such malpractices safe in the hands of a rogue Government. There is now a real danger that Parliament will soon be voting to ensure that that happens. That is what we are up against. However, before taking that step, Parliament would do well to consider the situation that would exist if the Government were the party in opposition and not the party in power.
Mr. John Gorst (Hendon, North) : I have been following the hon. Gentleman's speech with considerable interest and with a growing belief in its correctness. Is there not, however, another implicit inference to be drawn from his argument? It appears that he has been painting a rather black and white picture. On the one hand, his premise is that there is the law and, on the other, there is illegality--there is nothing else. I put it to the hon. Gentleman that there is an unacknowledged twilight situation in which there is wrongdoing, law-breaking or the infringement of liberties, which, if his amendments are not carried, would be sanctioned by the state. Irrespective of whether it is possible to raise them in the House, the law would have that effect unless it is amended in the way suggested by the hon. Gentleman.
Mr. Dalyell : The hon. Gentleman has made an extremely perceptive intervention. I may appear to be putting it in black and white terms, but my colleagues would not wish me to go on for much longer. Part of the problem is that this is very much a situation of various shades of grey, and anyone who looks at these matters seriously cannot be too dogmatic. I accept the importance and, indeed, the validity of the hon. Gentleman's intervention.
Although a number of other changes in the Bill are to be welcomed, because they clarify many of the poorly defined areas in the original Act, undue emphasis on the scope of those changes must not be allowed to obscure the elimination of the all-important safeguard of the public interest defence. If that last ditch defence is lost, we shall have set up the legal framework necessary to enable a Government to establish and maintain a rather toothless Parliament.
If a new law is passed, which makes the act of passing the information itself a serious crime with no public interest defence available, the only issue for the jury then would be whether the information was passed or not. If the
Column 449defendant admits that it was, or if there is no doubt about it, the jury must find the defendant guilty of the specified crime. In view of the now established importance of the jury in such cases, it could be to the defendant's disadvantage if the matter were taken up in the civil courts, should the Bill be passed with a public interest defence provision. A jury in a civil court is now a rarity. The Peter Wright case was heard in the civil courts with no jury and treated as a breach of confidentiality rather than a breach of the Official Secrets Act 1911. That might be one way round the prosecution's jury problem in the criminal courts. Hon. Members will recall Mr. Justice McCowan's remark in the Ponting case. He said : "the jury is not the body to decide what the interest of the state should be."
I say to my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) that I have gone into the Ponting case. There are conclusions to be drawn. It is not a matter of black and white and I shall listen with very great care to what my colleagues and other hon. Members of the House have to say.
Sir Bernard Braine (Castle Point) : This is a supremely important debate, and I mean no discourtesy to the hon. Member for Linlithgow (Mr. Dalyell), whose speech I found of intense interest, or to others if I limit my remarks to an aspect of the public interest involved in the disclosure of confidential or secret information which is concerned not with security or the defence of the realm but with the public's own health and safety. I refer specifically, of course, to new clause 8, which refers to a more limited public interest defence than that advanced by hon. Members in the earlier stages of this debate. But it is still one, I submit, of immense importance to all our people.
The clause provides a defence where a disclosure is shown to be "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." The Committee will note that the clause is limited in two ways. First, the threat must be shown to be imminent and serious, and, second, although it is imminent and serious, no effective steps have been taken to remove it. In short, we are dealing here with a possible serious threat to the health and safety of our fellow citizens, where I would have thought it proper that any Government should act and inform the public.
The threat may be posed in information from domestic sources known to the Government but not to Parliament or the public ; or it may derive from information provided under confidential cover by another Government or by an international body. It is my contention that in neither case can there be any justification whatsoever for important public information about health and safety to be kept secret. It is surely in the public interest in a mature democracy such as ours to alert the public to threatening danger.
I am glad to tell the Committee that in tabling this new clause, I and my hon. Friend the Member for Holland with Boston (Sir R. Body) are fully supported by the highly respected British Safety Council and by the Consumers Association, which, I understand, has indicated this to my right hon. Friend the Home Secretary. Indeed, a whole host of other responsible organisations have expressed supporting views.
Column 450As the Bill stands, information about safety problems could be covered by clause 3(1)(b), which protects information supplied to Her Majesty's Government in confidence by other Governments and by international bodies. As an example, such information might relate to the shipping of highly toxic wastes to or from the United Kingdom, or the spread across frontiers of radiation, acid rain, or pesticides or other chemical products. It was not so very long ago that we were made aware of the distress in Poland, Finland, Sweden and, ultimately, Cumbria as a result of what happened at Chernobyl, as a result of a distinct shortage of information from the Soviet authorities. Just suppose that the United States Government notified Her Majesty's Government in confidence that a particular model of an airliner was unsafe, and nothing was done about it, or there was serious delay in disclosing the facts, or--if I may borrow the phrase used by the hon. Member for Linlithgow--there was a disposition to be economical with the truth. Under the Bill as it stands, the person who revealed such information would be guilty of an offence. The case for the new clause can be put quite simply. Where there appears to be an imminent and serious threat to public health and safety, it should not be an offence for anyone possessing that information to disclose it if he believes that it would be in the public interest to do so. I do not think that the words "public interest" appear anywhere in the Bill, so I will define the term. The public interest in this context means, bluntly, avoidance of a situation which, if left unchecked and unheeded, could lead to the death and injury of fellow citizens and the destruction of property, possibly on a very large scale.
I went all the way through the Bill and I could not find the words "public interest" anywhere. In the event of a prosecution, therefore, the jury would not be invited to consider the public interest, still less whether the disclosure did more good than harm to the public. Yet, looking back, I can recall--and I am sure hon. Members in all parts of the House can recall --a number of instances in which disclosure not only would have served the public interest but would have saved lives.
Some hon. Members may recall the tragic consequences of keeping quiet about the risks to which the workers in an asbestos works at Acre Mill near Hebden in Yorkshire were subjected in the 1960s. Employees there knew that white asbestos dust was everywhere in the workplace, in the air, on their clothes and on their skin, and was conveyed to their families when they got home. What they did not know and could not know until long after the plant was closed was what this betokened for their health. Some of them were to die of asbestosis and many were to be gravely injured. The dust on their clothes infected members of their families. The local factories inspectorate knew that asbestos was prevalent there and did nothing. I will read out a passage from the ombudsman's report. It is to the eternal credit of the hon. Member for Bradford, West (Mr. Madden), who was at the time the hon. Member for Sowerby, that he campaigned in this connection and took the matter to the ombudsman. The ombudsman concluded :
"For many years neither employers, with whom the principal responsibility lies for arrangements to protect workers from dangers to health and asbestos, nor the Factory Inspectorate, who are charged with responsibility for
Column 451enforcing the legislative health and safety requirements, were aware of the full extent of the dangers from the dust created by processing asbestos."
Many hon. Members will know Mr. James Tye, the director general of the British Safety Council, an organisation which enjoys a worldwide reputation for its work in industrial safety. He told me only last week that, in this case, he pleaded with the factory inspectorate to make known the result of its inquiries in the public interest. In a letter to me he wrote :
"I knew about this situation, I repeatedly asked the District Inspector and the Chief Inspector of Factories to disclose from their official records this situation in the public interest and they repeatedly refused on the grounds that Section 2 of the Official Secrets Act didn't allow them to do so. Workers died and worse still their families died as well."
I could cite a number of examples but this one makes my point more eloquently than most.
A second example was the continued failure of the Department of Transport in the 1960s and 1970s to publish the results of its inspection of vehicles, which showed dangerous defects. In his letter, Mr. Tye continued :
"From 1950 through to 1979 the Ministry of Transport carried out tests of motor cars at the Road Research Laboratory. These tests revealed defects in cars which could cause accident and death, not only to drivers but to pedestrians. In 1979 following a visit to the American Highway Transportation Safety Agency I came back to England and set up a hot-line'- -in one week we had over a thousand people phone us up and tell us how unsafe their new cars were. All of this information was known to the Department of Transport who would not disclose it to the motorist because it contravened Section 2 of the Official Secrets Act."
I shall describe two other cases. The British Safety Council discovered two years ago that the highly efficient accident prevention advisory unit of the Health and Safety Executive had produced a confidential report on the safety of the London Underground system : it was never published. If the recommendations of that document had been implemented, there seems little doubt that a major disaster would have been averted. As it was, one management witness at the recent inquiry into the King's Cross disaster said that
"the APAU Report had not been discussed at any board meeting." I shall not dwell on the conclusion reached by the distinguished chairman of the King's Cross inquiry that management was at fault. This is not the occasion to go into detail ; however, I will say that the chairman said that cost-cutting came first and safety warnings not even second. If the report had been published, or even leaked, one can say that lives would have been saved.
Some older Members will remember the long battle that I waged for well over a decade against official blindness to the potential and actual dangers to my Canvey Island constituents. For years they were exposed to industrial hazards arising not only from an excessive concentration of liquefied gas, chemical and oil storage, but from management's careless handling at installations listed as major hazards. As a result there were numerous public inquiries and three health and safety reports.
Today, circumstances are very different, thanks to the public campaigns that my constituents and I waged together, and, one must concede, to the efforts of the
Column 452Health and Safety Executive. Yet I still recall an electrical engineer, employed at one of the installations, who came to tell me at my clinic one Saturday morning that serious risks were being taken with the safety of liquefied gas storage which posed a serious threat to residents beyond the perimeter fence. The risks arose from a defective alarm system fitted to a number of above-ground tanks containing huge quantities of liquefied gas. Half a mile away was a population of about 35,000. Any escape of liquefied gas would have led inevitably to the formation of a gas cloud and, with the prevailing winds blowing over the residential area--as they would in the Thames estuary--and where there are thousands of adventitious sources of ignition, would almost certainly have experienced one of the greatest disasters of all time.
My informant was hounded by his employers for his
public-spiritedness and felt unable to attend a public inquiry at which what he had to say would have been devastating. I can scarcely blame him for that.
Eventually, the matter was brought out in public and the necessary remedial measures were taken by the Health and Safety Executive. Disclosure of confidential information in a case of such slackness in safety mangement should have been regarded as a public duty from the start. It was not.
Mr. Whitney : Would my right hon. Friend agree that it was the broad scope of section 2 of the Official Secrets Act, which ranges from national security to the industrial problems to which he referred, that caused the problem? Narrowing the scope of the section so that it would affect only those within the "ring fence"--to use the jargon of this debate--would mean that those industrial problems would be debated and judged in a court of law. Does that not dispel my right hon. Friend's concern?
Sir Bernard Braine : My hon. Friend has opened up the subject more widely. Since the passing of the Health and Safety at Work etc Act 1974, managements at all industrial plants, especially those listed as high hazards, have had a responsibility not only to their employees but to the population living beyond the perimeter fence. I am talking of a period when that Act was in force. The asbestos example that I described occurred before that Act came into force.
Mr. Jeff Rooker (Birmingham, Perry Barr) : It is easy for the right hon. Gentleman to answer his hon. Friend the Member for Wycombe (Mr. Whitney). If the hon. Member for Wycombe is correct, there should not be the slightest difficulty about the Government accepting new clause 8.
Sir Bernard Braine : I entirely agree with the hon. Gentleman. I shall make a plea to that effect at the end of my remarks, and I am hopeful about its outcome.
I must issue a warning. If the Government resist the new clause, I must say, with all the force at my command, that they will be asserting that even if cases of malpractice or negligence occurred seriously undermining public health and safety, it would be an offence to reveal them. That runs counter--
Mr. Timothy Raison (Aylesbury) rose--
Sir Bernard Braine : Let me finish my point.
Column 453At best that runs counter to common sense and at worst is plain wicked. The basis of our parliamentary system is that Ministers are answerable in this place for the powers that they exercise. The hon. Member for Linlithgow made an apposite remark about parliamentary questions. He said that if hon. Members possessed certain information, their questions could often be effective, but how often do we find that questions are deflected because an hon. Member has slipped up with his information, or it is not complete, or there are other factors to be considered? We know how the system works. Yet Ministers must know that they are answerable to the House for the safety and health of the population.
In my judgment, there can be no justification for anyone to remain silent in circumstances in which he believes, and the information shows plainly, that there is an imminent and serious threat to public health and safety. I hope that I have persuaded my right hon. Friend of the logic and good sense of the new clause.
Mr. Dalyell : The right hon. Gentleman referred to parliamentary questions. I do not want to grind a personal axe, but there is a general point to be made--that, given the nature of parliamentary questions, particularly prime ministerial questions, Ministers can simply choose not to answer direct questions and can say something that just puts the shutters down. I intervene because that is relevant to information that comes from the general category of deep throats. Naturally, one must be careful unless one has that information on an attributable rather than an unattributable basis from a man who is careful with civil servants' careers. That is part of the reason for the amendment that we are discussing.
Sir Bernard Braine : I do not disagree with what the hon. Gentleman says. If we are questioned in our constituencies about what influence we can bring to bear on Ministers, we say that we can ask them questions and require them to give answers. However, in the present circumstances we get no answers with regard to highly confidential matters. I am going further and saying that, where public health and safety are concerned, Ministers of whatever Government have a duty to be frank and open. If they had been frank and open in case after case that I could cite, tragedy could have been averted.
Mr. Raison : I am trying to follow my right hon. Friend's argument. With regard to the cases to which refers, which might be covered by clauses 3 and 5, the Bill states specifically that the disclosure must be damaging. Surely, far from being damaging, the disclosures to which he refers would be beneficial ; it would therefore be possible for disclosure to be made.
Sir Bernard Braine : Perhaps my right hon. Friend will make that case in greater detail later, as I do not wish to detain the Committee any longer. I believe that I have made my point and I hope that the reasonableness of my case will have persuaded my right hon. Friend to look afresh at the matter. If he can give me an undertaking that he will do so and consider ways and means of accepting the logic and good sense of the new clause, I shall not seek to divide the House.
Mr. Gorst : I am worried that my right hon. Friend might have been persuaded by the intervention of our right hon. Friend the Member for Aylesbury (Mr. Raison).
Column 454Surely he has been ill-advised by our right hon. Friend in that matter. If a balance of harm is done to the public interest and to the Government of the day, my guess is that the Government interest will win and the public interest will lose. It is therefore important to insert the words "public interest", not just the word "harm", in the Bill. There would be two categories of harm, but only the Government harm would be considered. My right hon. Friend should press his new clause and not simply rely on the words in the Bill.
Sir Bernard Braine : I am not relying on anything, certainly not on the Bill. I had thought that I had made that absolutely clear. At this stage, I am not even relying on my right hon. Friend. I am relying on the sheer good sense and logic of what I have been saying, which is supported by every safety organisation in the country, and which I guarantee will be supported 100 per cent. by all my constituents and probably by other hon. Members' constituents. Numerous examples can be given of cases in which failure to disclose information has subsequently led to people losing their lives or suffering ill-health, and that is something--as the greatest man who has ever sat in this House said--up with which I will not put. I am being utterly reasonable here. I want my right hon. Friend to say explicitly that he grasps the point and will do something about it. However, if I fail to obtain a clear assurance which satisfies me, my hon. Friend the Member for Holland with Boston (Sir R. Body) and all hon. Members, we shall press the new clause to a Division. 5.15 pm
Mr. Hattersley : I wish to speak principally in support of new clause 1 which is grouped with amendment No. 91 and provides an opportunity for the Committee to insert into the Bill a formal and explicit public interest defence.
However, before I do so, I wish to say something to the Home Secretary about the speech of the right hon. Member for Castle Point (Sir B. Braine). In giving many powerful examples, the right hon. Gentleman probably gave two or three examples of the need to speak out and make public certain information, which would be allowed under the Bill. As I know the Home Secretary's techniques, I should tell him that the House will regard his response as inadequate--
The Secretary of State for the Home Department (Mr. Douglas Hurd) : The right hon. Gentleman has not heard it yet.
Mr. Hattersley : --if he picks simply on those examples in the right hon. Gentleman's speech that are not covered by his proposals. I see from the Home Secretary's smile that that is exactly what he had in mind. Opposition Members know that one case will certainly be covered by some of the examples given by the right hon. Gentleman ; that is the general case in favour of a public interest defence. We hope that the Home Secretary will turn his mind to that general case, which encompasses what he will claim to be safeguards in the Bill and which, in some particulars, would meet his right hon. Friend's point, but would not do so in others.
The new clause would make it possible for a defendant prosecuted under the legislation to argue that the disclosure which was the basis of the charge was justified in the public interest. It would be possible to argue that a
Column 455disclosure, although unauthorised by Government, was positively desirable in the national interest. If the new clause is incorporated in the Bill, the Government will forfeit their right to be the sole arbiter of where, in these matters, the public interest lies. The right hon. Member for Castle Point asked a rhetorical question-- whether the words "public interest" appear in the Bill. They do not, but it is the Home Secretary's habit to argue from time to time that something which amounts to an observance of and a respect for the national interest appears in the Bill and makes the new clause and amendment No. 91 unnecessary. The Home Office press release of 11 November suggested that a public interest defence already appears in the Bill. If the Home Secretary seeks to justify that press release, he will no doubt do so in the way that I shall describe, having asserted that the suggestion that public interest is recognised, let alone acknowledged, is simply untrue. We established in our debate last week that, with regard to clause 1, the prosecution is not required to demonstrate anything except the fact of disclosure.
The rest of the Bill is certainly less absolute, but it does not contain the protections that were suggested, at least by implication, in the intervention of the hon. Member for Wycombe (Mr. Whitney) when he interrupted his right hon. Friend the Member for Castle Point. In lieu of a public interest defence, as the Home Secretary will describe it, the Bill includes what are described as "specific tests of harm." But if they are examined, as they must be, in comparison with a proper public interest defence, they are seen to be nothing like an adequate substitute, particularly since, looking at them closely, we realise--and we must put the point even before we debate the so-called tests of harm later in our consideration--that the so-called tests of harm are not precise, are not objective and therefore are not reasonable.
I offer two examples to justify the claim that the tests of harm cannot compensate for the absence of a public interest defence. If a disclosure prejudices the capabilities of the armed forces in part or in whole, or is likely to do so, an offence is committed. The width of that definition makes it virtually worthless as a protection for anyone who reveals anything about the armed forces, and makes it wholly different in kind from a public interest defence. It covers all that the armed forces are doing, anywhere and at any time. Obviously--this is the sort of example that defenders of this as an alternative to a public interest defence will bring forward--neither Labour nor Conservative Members who oppose the Bill would attempt to justify revealing, say, the battle plans of the British Army of the Rhine, thus impairing the armed forces' ability to defend this country.
Consider another example. Let us assume that a civil servant discovers corruption at an ordnance depot and that the scandal is suppressed by authority. The revelation of that scandal might for a week or two prevent that depot from operating with its normal day-to-day smoothness, and because of that would prejudice the operations of the Army in that small particular.
Harm will in consequence be done. A prosecution can in consequence follow, and on the evidence of the Bill, since harm was done, the prosecution would succeed. But
Column 456surely on balance it would be in the public interest for the revelation to be made--although since there is no public interest clause in the Bill, that revelation would be illegal.
Mr. Heffer : If the Rhine battle plans were purely defensive, in line with NATO policy, I would agree with my right hon. Friend's comments. But if the plans were not purely defensive and a small group of people in the Army got control of the Army and decided to extend into a positive shooting war without anybody else's agreement, would my right hon. Friend not think it right that that should be revealed to the nation?
Mr. Hattersley : While I do not want to divide the opposition to the Bill, were a public interest defence included in it and were someone to reveal the battle plans of BAOR, offensive or defensive, and were I to sit on the jury which tested the propriety of that, I would come down on the side of it not being in the public interest that those plans should be revealed. That is a point on which my right hon. Friend and I may disagree, but let us concentrate for the sake of this argument on those areas where we are in unanimity about the desirabilitiy of allowing to be made public that information which can be made public without damage, by any criterion, to the national interest.
Mr. Whitney : In considering the right hon. Gentleman's example, it is important to get as near to reality as possible and away from hypothesis. There is a workshop or ordnance depot where corruption has been discovered. Is he seriously suggesting that he believes it possible that, if the discoverer of that information so persisted right the way up through the chain of command of the Army and Civil Service, to the permanent head of the Ministry of Defence and on to the head of the Civil Service, the whole of that web would participate in covering up the corruption?
Mr. Hattersley : I have noticed from the repeated interventions in debates by the hon. Member for Wycombe (Mr. Whitney)--no doubt the product of his years flitting from the Army to the Civil Service and on to Government--his extraordinary deferences to authority. He always believes that the next man up will do the right thing. That in my experience, and I suspect his, is not how life turns out in practice.
We must consider in discussing the Bill--for it is protecting the public interest--those occasions when the next man up does not or might not do the right thing. The Bill as drafted says that when the next man up does not do the right thing, it becomes a criminal offence to say so. I hope that the hon. Member for Wycombe will try to concentrate on that concept rather than reiterate his pathetic belief that authority is always right.
Mr. Whitney : I hope that the right hon. Gentleman will understand-- I appreciate the limitations he may have in comprehending this--that we are not talking about incompetence. He was talking about corruption and was inviting the Committee to suggest that the whole of the structure that he posited would condone corruption. I think I see him sniggering. I do not subscribe to that view of the Civil Service or of the armed services of this country.
Mr. Hattersley : The hon. Gentleman is entitled to that grand old traditional view of life and society and will no doubt vote that way when the Committee divides on this issue.
Mr. Rupert Allason (Torbay) : An example that springs to mind quickly of somebody who would suffer badly under the Bill is Jack Kane, who made allegations relating to corruption and the leakage of secret information from a GCHQ establishment in Hong Kong. He pursued that case, and as far as I can tell--having followed the case as best I can, bearing in mind that there is an injunction on it--there have not been any criminal convictions, except that Jack Kane has had to seek employment as a milkman.
Mr. Hattersley : I understand--the hon. Gentleman will correct me if I am wrong--that if Mr. Kane had, in the circumstances he described, revealed what he regarded as corruption and the attitude of authority, under the Bill as drafted he would be prosecuted and convicted. So I repeat that the width of the definitions and the limitation of the harm test mean that they are in no way an appropriate alternative to the public interest defence.
I will give a second example. The Home Secretary will no doubt say that when we talk about information regarding international matters that can or cannot be revealed, the limitation on revelations and prosecutions for unauthorised revelations will concern only matters which jeopardise the interests of the United Kingdom abroad. The idea that that might form the basis of a defence and provide some sort of protection was dealt with by the BBC, which wryly said that that definition could not be used as useful guide to journalists. It will, no doubt, be used as a useful weapon for politicians who wish to determine what journalists write and say, but that is different from a public interest defence.
There have been--no doubt we shall hear about this again from the Home Secretary--arguments as to whether a public interest defence could reasonably become a feature of English law. On the evidence, it is already in some respects a feature of English law. There is no doubt that the aquittal of Mr. Clive Ponting amounted to the jury's judgment that he acted in the public interest by revealing the truth, when the Government wanted to deceive the British people. I was not sure whether the quotation given by the hon. Member for Wycombe was intended to incriminate my hon. Friend the Member for Linlithgow (Mr. Dalyell) or incriminate Mr. Ponting. The question is not whether we like or admire Mr. Ponting or whether he is the sort of man with whom we would want to be stationed in China. The question is whether the principle that underlined his prosecution and the removal of the principle on which he was acquitted is a principle that we wish to uphold in the Committee today.
Not only the Ponting case gives one reason to believe that, at least to some degree, there is an element of public interest defence. The judgments of the Law Lords in "Spycatcher" made it clear that at any rate some of their conclusions were based on an assessment of where the public interest lay. Lord Keith of Kinkel, having referred to the public interest implications of the Crossman diaries as a precedent, turned to the proposed injunctions against The Guardian and The Observer and said :
"I am of the opinion that the reports and comments proposed would not be harmful to the public interest."
Lord Brightman judged that the articles--I quote again exactly from the judgment--
"were not in fact damaging to the public interest and are not therefore a proper foundation for any case by the Crown against the newspapers."
Column 4585.30 pm
Mr. David Winnick (Walsall, North) : Surely one other case that comes to mind is that of Cathy Massiter, who, as I think my right hon. Friend would agree, is a woman of the utmost integrity. She performed a public service by disclosing what went on in the security services--the abuses that seemed to be connected with the right hon. Member for Henley (Mr. Heseltine) when he was Secretary of State for Defence. Surely that lady, who was not prosecuted--and rightly so, of course--would have absolutely no defence under clause 1.
Mr. Hattersley : If there had been a prosecution in that case, if I had been on the jury, and if the public interest defence had been invoked, I would have wished to declare Miss Massiter wholly innocent, in that she was acting in the public interest. But whether the Home Secretary accepts my hon. Friend's judgment, and mine, that in a number of matters affecting security the public interest criterion is already partly present, he has to accept that it exists in other English laws as they now stand. Under section 4(1) of the Obscene Publications Act, conviction is conditional on the public interest being served, for it is possible for a defendant to argue that publication is "justified as being in the public good".
The significant--I almost said "sinister", but it would be too open, too overt, to admit that it is sinister--damaging and dangerous thing about this Bill is that if it is passed in its present form it will extinguish many of the elements of the public interest defence that now exist. That fact alone--the present elements are to be distinguished--disqualifies it from being described, as the Home Secretary so often chooses to describe it, as a great liberalising measure.
I repeat--for it is worth repeating--that in this particular the Bill removes a defence which, at least in part, was available under, I think, part of section 2 of the 1911 Act, and which was successfully employed by Mr. Clive Ponting.
Mr. Hattersley : The Home Secretary says, "Oh." I want to develop the point of the Ponting case and the Ponting judgment. I agree with my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) that this is only illustrative, that it is not simply about Mr. Ponting, although what happened to Mr. Ponting demonstrates what the law now says and how the law will soon be changed--in my view, for the worse. If this Bill becomes law, it will not be possible, as it was possible for Mr. Ponting, to argue that, while the rule of confidentiality had certainly been broken, the public interest was served. Nor will it be possible for a defendant to argue that, while some marginal harm might have been done to the national interest, the good that disclosure did more than outweighed the damage. The present Act-- the 1911 Act--is explicit. My hon. Friend quoted it, but it is worth quoting again.
That Act says that it is no offence to make a disclosure to someone
"to whom it is in the interests of the state"
"duty to communicate the material."
The Home Secretary always says that that provision was not intended to be interpreted as the Ponting jury chose to
Column 459interpret it, but, with great respect to the Home Secretary, I must say that in this matter his opinion is of no consequence whatsoever. The fact is that the section was so interpreted, and there are two views we can take of that interpretation. The first is that it was a point that was so good in law that at least the Government were not able to appeal against it. The second is that, if the area of law is at least grey, as the Home Secretary suggests, a British jury's wisdom and instinct for justice and common sense led it to choose to make a public interest defence relevant to that case. Either way, the Home Secretary is overturning and reversing processes that are better than those that he chooses to put in their place.
Dr. David Owen (Plymouth, Devonport) : Is not the fascinating thing the fact that the Government did not take that case to appeal, because they were afraid of the judgment? If an appeal had upheld the jury's judgment, this legislation would really have been impossible to produce, so the Government decided to change the law so as to prevent that defence from ever being used again.
Mr. Hattersley : I agree entirely. I believe that, at the time, there was an upsurge of the opinion that telling the truth in order to contradict the misinformation that is spread by the Government is not something for which a man ought to be penalised and sent to prison. The upsurge of feeling was such that the Government could not have maintained their case successfully in any court.
The result is that there is a period of cooling off in the hope that that feeling of outrage will subside, and then the Government bring in a Bill which, in this particular, is far more repressive than that which it is intended to replace.
The fact is that, whatever the Home Secretary may say about the present law, the jurors in Mr. Ponting's trial, balancing Mr. Ponting's unauthorised revelation of the truth against the Government's official dissemination of inaccuracies, judged that, among the persons to whom, in the words of the Bill, it was in the interests of the state for the truth to be revealed were the citizens of the state, the people themselves--that it was in the interests of the state for the people to know what was happening.
The public interest defence is essentially based on that contention--the contention that it is sometimes in the interest of the state as a whole for the people to be told the truth when the Government want to suppress the truth. That is a principle that ought to be respected in every democracy, but if this Bill goes through unamended by any of the group of amendments and new clauses that we now debate, a defence based upon that essential canon of democracy will be wholly obliterated.
I know that I encourage some hon. Members opposite to support the Bill when I say that, under the present proposals, Mr. Clive Ponting, who was acquitted under the 1911 Act, would be convicted, but I want to repeat that, whatever else that fact proves, it certainly demonstrates that the Home Secretary's contention that this Bill is in almost every particular more liberal than the one it seeks to replace does not stand up to a moment's examination.
Before I seek to justify the concept of the public interest, I want to make clear the limited nature of the new clause that we now propose. Its wording is so intended that
Column 460it does not provide a defence for civil servants who, acting out of political prejudice, personal resentment, pique, or spite, reveal what should be kept secret. The public interest defence will be possible only in the limited circumstances that the clause specifies--where the man or woman charged with the offence is able to demonstrate that he or she had reasonable cause to believe that the facts revealed indicated the existence of crime, fraud, abuse of authority, neglect in the performance of official duty, or other misconduct.
Because it is so limited, what the Committee has to decide, when we come to vote tonight, is whether a public servant who believes that one of those situations exists--crime, fraud, the abuse of authority, neglect or misconduct--should be sent to prison for attempting to end the abuse by making the abuse public, even if he or she has attempted to find redress under the internal mechanisms and found that, under those mechanisms, redress is impossible.
Under the Bill, unless it is amended, in the sort of circumstances that I have described, the wrongdoer may well escape, while the public servant who revealed the wrongdoing is automatically prosecuted, convicted and sent to prison.
Mr. Tony Baldry (Banbury) : I have been listening carefully to what the right hon. Gentleman has had to say. Will the test that juries will have to apply under his amendment be subjective or objective?
Mr. Hattersley : It will be a test according to the criteria I have just described--namely, that the man or woman had reasonable cause to believe that the conditions that I have outlined were operating. Of course, that means that there may be occasions when the jury says that the man thought that a misdemeanour was being perpetrated or that the woman believed that misconduct was taking place, but that that was an unreasonable conclusion for the man or woman to come to, that it was not based on sufficient evidence. In that case, the man or woman would be convicted rather than acquitted.
There may be some, therefore, who will feel that this is an over-exacting test of the public interest, but we have tried to put it in minimal terms in order that anyone who has the slightest instinct and feeling for the proper public interest of this country will feel able to vote for the new clause.
I hope that some hon. Members will feel able to vote for the amendment, because the implication in this amendment and in the new clause carries an idea which is essential to democracy in this country. Without a public interest clause in the Bill, what is harmful to the national interest is determined by the Government. They become the arbiters of the national good and, at least in their own minds, synonymous with the national good and the public interest. There are occasions in any democracy when on an objective, unbiased judgment, a Government act against the national interest. To allow the Government to decide what is in the national interest allows the Government to act lawfully, but tyrannically.
Lord Hailsham constantly warned us about the dangers of Britain becoming an elective dictatorship, before he joined one by becoming a member of the Cabinet in 1979. Lord Hailsham and the Secretary of State must understand that to announce, as the Bill announces, that the Government will decide within the vaguest of