Column 461parameters what may or may not be published, without the benefit of a public interest defence, is a perfect example of elective dictatorship in operation. The Government claim to act for the state, of the state and to be the state and they extinguish one of the people's basic rights, the right to know the things which can be published without causing damage to the community as a whole. We argue that the absence of a public interest defence means that information will be suppressed which, were it made public, would be to the benefit of society as a whole. Not only ought that information to be available, but it would benefit society through its availability.
Reasonable men and women will agree that, when the interests, and particularly the security, of our society are threatened, it is right and necessary to proscribe and prohibit the publication of official information. However, the public interest defence is, by definition, about information which, if published, certainly does not damage the national interest and may be to its benefit.
The public interest defence also insists that a court of law--a jury-- should decide where the public interest lies. The Government are incapable of understanding that they cannot be the arbiters in those matters. That is true--I repeat this because it is worth repeating--because the Government are not the whole state and should not believe that they are or act as if they are. It is also true because, very often, information is suppressed which need not be suppressed and is kept in secret by the Government, not to keep it from unfriendly powers, but to keep it from the people of this country.
The crucial test of an Official Secrets Bill is whether it adequately distinguishes between information that it is necessary to keep secret in the national interest, and information that is either capable of publication or which it would be positively in the national interest to disclose. In the absence of a public interest defence, this Bill fails that test.
The Bill provides--not absolutely, but far more widely than is acceptable in a democracy--the right of the Government to decide what people may know and what they may be told. Throughout the lifetime of this Government, we have seen that their obsession with secrecy is not so much about protecting information necessary for our security, but suppressing information which is embarrassing to the Government. Time after time, information well known to other Governments, friendly and unfriendly, and freely available in other countries has been proscribed or pursued through the courts. Without a public interest defence, the Bill allows the Government to suppress information which the people of this country have the right to know. That is why I will happily vote for the amendment.
Mr. Hurd : I thought that it might be helpful to the Committee if I intervened at this early stage. If it is convenient to the Committee, I will gladly speak again if necessary. I thought that it might be sensible to discuss the amendments from the Government's point of view in the wider compass of the Bill and with regard to our general approach to protecting the national interest.
I agree with all right hon. and hon. Members who have spoken that the question whether there should be some form of over-arching public interest exemption from the offences in the Bill goes to the heart of the measure. In my mind, it raises the question whether the criminal law can have any effective role in relation to official secrets. I want
Column 462to consider what has been said and to consider the amendments, not in detail at this stage, but to see how they fit into the Bill's structure and the approach that we have tried to adopt to deal with section 2 of the Official Secrets Act 1911.
Once again, I do not recognise the portrait of the Bill that the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) painted. I do not expect at this stage to persuade all members of the Committee, but I am sure that hon. Members are open to argument about these matters and to our request that they consider exactly what the Bill states.
As the right hon. Member for Sparkbrook anticipated, I disagree with the argument that there is already, partially, some kind of over-arching public interest defence in the existing criminal law. A number of defendants have tried to claim that there is a limited form of such a defence, but the right hon. Gentleman knows that he cannot cite cases in which the courts have accepted that argument. Certainly, juries have acquitted in some cases --and a feature that is common to the existing law and to the Bill is that, at the end of the day, juries must decide and they do not give reasons for their decisions. Nevertheless, it is a flimsy argument to erect a great construction on the basis of individual cases.
The right hon. Member for Sparkbrook quoted the Obscene Publications Act 1959. I was surprised that he did that as I thought that all hon. Members, lawyers and non-lawyers, would agree that that Act is thoroughly unsatisfactory.
Mr. Hurd : We have had difficulty from time to time in deciding how to change the Obscene Publications Act 1959, but I cannot think that the isolated example that the right hon. Gentleman gave is a good example to cite in this context.
Mr. Hattersley : The Home Secretary and I may argue about whether it is a good example, but I hope that we shall not argue about whether it is an example. The right hon. Gentleman contends that the public interest defence does not exist in criminal law. I have given an example in which it exists and I do not understand how he can continue to claim that it does not exist in that area.
Mr. Hurd : I am sorry, but it does not exist in the official secrets legislation. That is my point. The right hon. Gentleman cannot sustain his flimsy construction in that area. He has found, quite accurately, an example where it exists in another piece of the criminal law--that is perfectly true--but the force of his argument is spoilt by the fact that everyone considers his example to be a thoroughly unsatisfactory statute.
Mr. Aitken : How can my right hon. Friend possibly argue that section 2(1)(a) of the Official Secrets Act 1911 does not exist and has not been used as a form of public interest defence? Not only has it almost certainly been used
Column 463as an argument by those who have not been prosecuted, such as the civil servants who briefed Sir Winston Churchill before the war, but it has been used in specific cases. I naturally remember the case in which I was involved. In that a great deal of the Old Bailey's time was taken up with submissions, which were accepted, to the effect that the words in section 2
"in the interests of the state"
formed the basis upon which a jury could acquit. So there is clearly a public interest defence and it just does not add up for the Home Scretary to deny its existence.
Mr. Hurd : My hon. Friend and I have had this exchange before. I can only repeat my previous answer. As I said a moment ago, defendants have tried to construct that defence, but it has never been accepted by the courts.
Mr. Spearing : On a point of order, Mr. Deputy Speaker. Is it not the custom of the House that in Committee right hon. and hon Members, whatever their status or experience, give way to reasonable interventions, particularly from those Members who have served the Crown on matters relating to their speeches and to the law?
Mr. Hurd : I have already given way several times. I am perfectly prepared to give way to the right hon. and learned Member for Warley, West (Mr. Archer). Then, with the permission of the Committee, I should like to continue what I consider is a connected argument, but I shall give way again before I sit down.
Mr. Archer : Will the right hon. Gentleman explain how the argument for the defence in the Ponting case--that the disclosure was to a person to whom it was in the public interest to disclose it--could be advanced in a prosecution under the Bill?
Mr. Hurd : I am not saying that. I am making the point that neither the right hon. Member for Sparkbrook, nor the right hon. and learned Gentleman, nor my hon. Friend the Member for Thanet, South (Mr. Aitken) has been able to show where the courts have established a public interest defence under the existing law. The argument with which my hon. Friend concluded is that there have been acquittals--a fact that I acknowledged five minutes ago. Juries do not give reasons--and the one thing common to the Bill and the existing Act is that ultimately the jury takes a decision without giving reasons. I hold to the view that it is perfectly reasonable to debate the proposition that we should provide a public interest defence. The right hon. Member for Sparkbrook spent most of his speech on that subject. However, it is not possible to argue, as the amendments do, that we should retain something which exists in the present law under criminal legislation.
Mr. Dalyell : On a point of order, Mr. Deputy Speaker. As the mover of the amendment, may I ask you whether at this stage, when there is a clash of opinion with QCs and others taking very different views, it would be reasonable to ask for the presence of the
Attorney-General or the Solicitor-General to clear up these matters?
Mr. Dalyell : My right hon. Friend says that they should have been here. I do not wish to be offensive to the Home Secretary, but as the mover of the amendment and a layman I think we are entitled to have a Law Officer present.
Mr. Deputy Speaker : The hon. Gentleman knows that I do not have the authority to do what he asks. It might make sense for the Secretary of State to be allowed to reply to the debate so far. In Committee there is no requirement for any hon. or right hon. Member to seek the approval of the Committee to speak on a second occasion.
Mr. Hurd : We are covering ground that we have covered before. I want to get to the heart of the matter. Regardless of whether there has been a public interest defence, on which I disagree with some right hon. and hon. Members and I think that I am right, we now reach the question whether there should be one in the future.
I hope that the Committee will agree that there is no need to create a public interest defence where there can be no prosecution. I listened with very great care to the speech of my right hon. Friend the Member for Castle Point (Sir B. Braine), the Father of the House, who has since had to leave the Chamber. As he said, under the 1911 Act there could be a prosecution if there was any unauthorised disclosure of official documents on matters such as public health or aircraft safety. My right hon. Friend gave examples from the factories inspectorate, the Department of Transport and from his own continuous and eloquent efforts to protect his constituency from certain environmental evils. I am not so familiar with those cases as he is, and I do not know what reasons officials or official organisations had for withholding information on those various occasions, but having listened carefully I can assure my right hon. Friend that if the Bill is passed those officials will not be able to say to him what they said on those occasions--that they could not give him the information because it was against the criminal law.
Mr. Hattersley : I realise that the Home Secretary is dealing with the speech of the right hon. Member for Castle Point (Sir B. Braine) at some length, so I wish to ask him a question that relates to the part of the right hon. Gentleman's speech regarding safety, the possible outbreak of disease, damage or contagion. Would the Bill catch the Windscale cover- up of 1957 when the Cabinet took a conscious decision not to allow people to know the damage that was caused by the leak at Windscale?
Mr. Hurd : I do not know the background to the Windscale case or whether it conceivably could have come under any of the tests of harm in the Bill. However, I listened carefully to my right hon. Friend's examples and I cannot think that they would. Indeed, my right hon. Friend's speech drew from the right hon. Member for Sparkbrook the first acknowledgment in many hours of debate that the Bill, as compared with the Act, contains important safeguards. That was a very important and interesting admission. I agree with my right hon. Friend the Member for Castle Point that it is not common sense that, whatever the arguments about the merits of particular disclosures, they should not be conducted on the basis of the criminal law. There may be wrinkles that I have not grasped, but I cannot see how his examples could
Column 465be within the scope of the present Bill, although they certainly came within the scope of section 2 of the Act. His speech was a measure of the substantial changes between the existing Act and the Bill which have been acknowledged for the first time by the right hon. Member for Sparkbrook.
Mr. Richard Shepherd : I shall not contend the instances that my right hon. Friend recalls. However, my right hon. Friend the Member for Castle Point (Sir B. Braine) gave other instances such as information originating from foreign Governments which might affect matters such as salmonella, poison or health risks, and information on the safety of aircraft engines. Those matters will still be covered by the criminal law with a very trivial defence barrier.
Mr. Hurd : I will not swap epithets with my hon. Friend--he knows better than that. My right hon. Friend the Member for Castle Point dealt with that point, but it was not the main thrust of his argument. He said that he had been led to believe that it was possible that issues which might otherwise have been removed from the criminal law under the Bill, although they exist in the Act, might be retained by the protection which the Bill gives to confidential information obtained from other countries or international organisations. It has been argued that it would be an offence to disclose any EC draft directive or any confidential document on any subject. I understand why that misunderstanding may have occurred to my right hon. Friend the Member for Castle Point and the safety organisations that he cited.
It is perfectly true that that would have been the case under the White Paper. One of the criticisms made in the House when we debated the White Paper was that it went far too wide. Sir Leon Brittan made that point at the time, and we listened to that criticism. Therefore, the position is different in the Bill. Under the Bill, no one who discloses such information--information derived from a confidential draft EC document on salmonella, for example--can be convicted under the Bill unless his disclosure jeopardises our interests abroad, seriously obstructs the promotion or protection of those interests, or endangers the safety of our citizens abroad, or is likely to have any of those effects and he had good reason to know that it would. That is quite a different kettle of fish and it would be a considerable contortion to imagine circumstances in which the Bill as opposed to the White Paper could meet any of the cases that my right hon. Friend the Member for Castle Point put forward.
I entirely understand why my right hon. Friend put his case so strongly. If we had rested on the White Paper, although the great majority of the cases that he mentioned would be outside the Bill and would be examples of information liberated from the criminal law under the Bill, there might have been an argument about information derived from abroad. However, the change between the White Paper and the Bill deals with that point and I hope that on reflection my right hon. Friend the Member for Castle Point and my hon. Friend the Member for Holland with Boston (Sir R. Body) will regard it as reasonable.
Mr. Buchan : The other aspect in clause 2 for which, again, there is an absolute case relates to defence. I live near the Clyde estuary, surrounded by nuclear weapons, nuclear bases and nuclear installations. If there were a leakage, damage would be done to the health of the local
Column 466community, but disclosure could damage our prestige, standing or relationship with allies. Would the interest of the state mean the interest of the people in the area and therefore mean that the information should be disclosed, as was argued in regard to Windscale, or would the Bill prevent that?
Mr. Hurd : The present law provides no protection. We shall discuss later the specific defences to which the hon. Gentleman refers and hon. Members will decide whether they are sufficiently specific, too wide or too narrow.
Mr. Gorst : My right hon. Friend is exchanging the disincentive in section 2 of the Act for a further disincentive. No one will feel free to make a disclosure with the sword of Damocles described as "harm" hanging over his head. The prosecution will have to prove that harm took place--and unless the person is proved to have been justified in making a disclosure in the public interest he will go down for years.
Mr. Hurd : My hon. Friend has not grasped the narrow nature of the Bill. In the type of case with which my hon. Friend sympathetically helped my right hon. Friend the Member for Castle Point (Sir B. Braine), there is no question of having to prove harm. Prosecutions cannot be brought on matters relating to public health, so there is no need for a public interest defence.
Mr. Shepherd : My right hon. Friend asserted that under this category information coming from the EEC would not harm the interests of the United Kingdom abroad, and he emphasised "abroad". One of the issues raised in previous debates was that the test of damaging the interests of the United Kingdom abroad is satisfied by the fact that a document is confidential. That is what has caused the difficulty and why we say that it is within the scope of the criminal law.
Mr. Hurd : The test is of jeopardising our interests abroad. It is extremely unlikely that the examples given by my right hon. Friend the Member for Castle Point, the Father of the House, will be brought within the scope of the Bill.
I shall deal with the parts of the Bill that are relevant to the arguments deployed by hon. Members about public health and safety. With two exceptions, it will be for the jury to decide whether a disclosure meets the terms of the harm described in the Bill. Most people expected ministerial certificates to be introduced. All issues are to be decided by the jury because it is not the Government but the jury who are the arbiters on the basis of the legislation that Parliament passes. That is why I do not recognise the portrait painted by the right hon. Member for
Column 467Sparkbrook. I understand why those who, like the right hon. Member for Sparkbrook, thought in terms of ministerial
certificates--throughout their working lives their propositions were based on ministerial certificates--have difficulty in accepting the full implications of the change that we are proposing.
Two sets of circumstances are defined in the Bill in which we believe that the disclosure of official information without authority must inevitably cause harm. The Committee has already discussed the first--clause 1--in which a former member of the security and intelligence services or a notified person breaks the secrecy by which the services must operate. The second relates to the disclosure of information about or arising from the use of the special investigation powers under statutory warrant from the Secretary of State. In all the other more substantial information covered by the Bill, including information relating to security and intelligence that is not covered by the special offence that I have just mentioned, it will be for the jury to decide whether a disclosure caused or was likely to cause the form of serious harm to the public that the Bill specifies. I cannot accept that any of the harm tests are minor, trivial or unimportant. Hon. Members will want to discuss the wording of the relevant test, but no criticism of it can be a sufficient argument for setting aside or overlaying those tests with a different public interest defence.
In different ways, the amendments propose an over-arching, public interest defence. It is worth mentioning that there will be no over-arching, public interest prosecution. We have deliberately narrowed the scope of possible prosecution by providing, in most cases, the specific harm test. At present, the prosecution need not prove harm, but in future it will not be possible for it to argue against a civil servant who reveals a defence secret that the disclosure damaged some vague public interest. The prosecution will have to show that the defendant knowingly caused or was likely to cause the harm defined by Parliament in the Bill.
In the light of the relevant harm tests, the defendant is free to introduce such evidence as he chooses to support his argument that the disclosure was not likely to cause that harm or that he had no reasonable cause to know that it would. He can argue that the prosecution's application of the test of harm is mistaken and that on a proper application of the test his disclosure was not likely, for example, to damage the capability of the armed forces. He may say, on the contrary, that as he was revealing deficiencies his disclosure could not possibly have harmed the forces and could only have enhanced their capability. Within the test of harm, the jury will have to decide that argument.
The Bill does not allow the defendant to argue that, although his disclosure has caused the specified harm, and he knew that it would, the court should weigh that against some other consideration. Critics argue that that is a restriction on the defence, but it is also--I am sure that this will be acknowledged by the right hon. and learned Member for Warley, West, who is a former Solicitor-General--a restriction on the prosecution in the sense that I have just described. The argument will be whether the test of harm has been satisfied.
Mr. Hattersley : The Home Secretary seems to be arguing that there is a concept of balance of harm. He said that it would be open to argument that, although some harm had been done, even more good had been done-- [Interruption.] The Home Secretary said or implied that, and I am asking for clarification. Am I right in thinking that, if a little harm is done, it is sufficient to convict even though the defence may argue that much benefit has been derived at the same time?
Mr. Hurd : If the prosecution were based on the test specified for defence information, the defence would simply argue that harm had not been done or that capability had not been damaged. The defence would adduce arguments to prove its case, but neither the prosecution nor the defence could import vague arguments derived from other matters. I hope that that is clear.
Mr. Buchan : If the harm relates to the defence of the country, but the good relates to the interests of people in the area, it would be sufficient to prove that harm had been done--not to make a balance--for the person to be found guilty.
Mr. Hurd : The hon. Gentleman is right, and on that he will base his criticisms of the Bill. In the case that he mentioned, the test would be whether harm had been done to the defence forces. It has been suggested-- this is the crux of the matter--that there are circumstances in which it is necessary for a person seriously to harm this country's vital interests to reveal a matter of public concern. The hon. Member for Paisley, South (Mr. Buchan) sought to argue that from his example. We do not accept that argument because we believe that there are ample ways of pursuing grievances, worries and anxieties up to the highest level if one is a public servant, although the methods vary according to the Department concerned. The case that has caused the greatest discussion in Committee is the absolute offence. I remind the House that about 15 months ago a staff counsellor was appointed to whom members and former members of the intelligence and security services could take anxieties about their work. He has unrestricted access to my right hon. Friend the Prime Minister and to myself to report on any matter raised with him.
Mr. Winnick : Let us consider again the case of Cathy Massiter. Had there been a staff counsellor then--I know that he was appointed afterwards --and she had not been satisfied that her complaint was being dealt with properly, what could she have done if what she saw as an abuse by the security services continued? Is he telling us that in those circumstances someone like that or anyone else in future should come to the conclusion that there is no overriding interest for the country above that of the Government of the day?
Mr. Hurd : There have been two recent changes since that case--I have deliberately not referred to past cases. I have just mentioned the first and the other is the procedure for warrants which took up considerable time during the debate on the Security Services Bill. The hon. Gentleman knows the position. One reform already introduced is that warrants must be authorised personally by the Secretary of State with the commissioner looking over his shoulder and, of course, people with grievances will have access to
Column 469the tribunal. We propose to extend that principle to any interference with property that the Security Service may undertake. Mr. Richard Shepherd rose --
Mr. Hurd : So there have been two substantial changes in recent years and, between them, they provide a remedy for iniquity--to use the legal jargon for the point that the hon. Member for Walsall, North (Mr. Winnick) made. The remedy that a member or a former member of the security or intelligence services should seek should be other than breaking the duty of confidentiality.
Mr. Hugh Dykes (Harrow, East) : My right hon. Friend has commended to us the enhancement of the internal Civil Service rectification procedures and has said that the internal situation in all Departments will be much improved. Does that not mean that he should have greater assurance and self-confidence and accept the strong arguments for the public interest defence? The senior civil servants to whom aggrieved civil servants take complaints about serious misdemeanour will know of the solemn and serious procedures and will know that, in the background, there is the possibility of the public interest defence being invoked if an unallowable disclosure takes place. On the other hand, the aggrieved civil servant who is anxious to get off his chest the fact that gross and improper misdemeanours and wrongdoings are occurring in his Department will know that the final, solemn and awesome step, which he does not want to entertain as a possibility, is that public interest defence which he knows that he has the right to invoke in the final analysis. Surely my right hon. Friend should have more confidence in the internal procedures and should see the merits and weight of having those two considerations proceeding jointly, rather than one cancelling out the other.
Mr. Hurd : I admire my hon. Friend's great ingenuity in making that point and I shall try to deal with it. I was trying to put the argument that, although it would have been possible, a long time ago, to argue that the people referred to in clause 1 had no remedy except to go to the press, that argument no longer exists. In dealing with the point made by my hon. Friend the Member for Harrow, East (Mr. Dykes) one must look at the amendments, one of which he believes I should accept.
Mr. Richard Shepherd : I hope that my right hon. Friend saw the letter in The Times a week ago from Lord Croham, Sir Douglas Wass, Sir Patrick Nairne and others. They envisaged that internal procedures cannot always be relied upon and that, therefore, some other mechanism is needed. The burden of my right hon. Friend's argument is that internal procedures can be relied upon absolutely, which conflicts with the views of those who have administered the Civil Service for some years and who have some insight.
Mr. Hurd : The letter did not argue for my hon. Friend's proposition, but for further strengthening of internal procedures. The letter-writers were a little out of date because the procedures have been updated. There is now access to the head of the Civil Service and not just to the head of Department, but that is a minor change and we do not rest our case on that. The letter from those
Column 470distinguished former public servants is an argument not for amendment, but for a further strengthening of internal remedies. It is useful that our critics have tabled this group of amendments because we then have something to shoot at. Some of the amendments, such as amendment No. 91, would justify disclosure on grounds, such as the suspicion of misconduct, so wide that they would give the wrong message to public servants and could lead to a dangerous weakening of the public service.
Mr. Hurd : I shall just illustrate my point. New clause 1 and some of the other amendments seek to provide an absolute defence for anyone who can show reasonable cause to believe that the information he disclosed suggested the existence of misconduct, however minor. What is misconduct? Does it mean being slow in answering a letter or taking a few days off when one should not? We have had to face such criticisms. It is right to say that the amendments go wide. What is meant by
"neglect in the performance of official duty"?
That could cover comparatively minor matters. Amendment No. 91 provides that indication of such behaviour would be sufficient to prevent prosecution for an unauthorised disclosure, even if it caused great harm.
I shall now deal with the point raised by the right hon. Member for Sparkbrook. He implied that it would not matter if the plans of the British Army of the Rhine were revealed so long as one indicated the existence of neglect in the performance of public duty or other misconduct.
Far from asserting the Government's role as an arbiter, which is the gravamen of the charge made by the hon. Member for Linlithgow and the right hon. Member for Sparkbrook, the Bill, in comparison with section 2 of the Official Secrets Act 1911, is shifting the balance in favour of the individual, whether a civil servant or journalist, by withdrawing the criminal law wholly from the bulk of official information and providing that the specific harm test will not be laid down by Government but agreed by Parliament. For most of the remainder, the prosecution will have to pass the specific harm test, and the Bill provides that nobody can be convicted if he had no reason to know that his disclosure would be harmful and will leave the final decision to the jury without ministerial certificates. The question is whether with all those changes we want to provide grounds-- sometimes loosely defined--that would justify public disclosure of information that Parliament will have decided should be kept close. I am sure that we should not.
Mr. Robert Maclennan (Caithness and Sutherland) : The Home Secretary's early intervention in the debate has been helpful, because it has revealed the poverty of the Government's case at an early stage. We shall not now have to indulge in speculation about how the Government will deploy their defence, but can instead examine the argument that the Home Secretary has used to seek to deflect almost universal criticism of the Government's refusal to adopt a public interest defence. There was widespread support for the Government's attempt to amend section 2 of the Official Secrets Act, but by digging
Column 471in his heels against the public interest defence the Home Secretary has frittered away the goodwill that he undoubtedly enjoyed when he embarked on this task.
I shall speak specifically to new clause 5, which stands in my name and that of my hon. Friend the Member for Orkney and Shetland (Mr. Wallace), but before I do so I should like to discuss amendments Nos. 81 and 16, in the name of the hon. Member for Aldridge-Brownhills (Mr. Shepherd). Their purpose is to restrict the scope of the offence relating to disclosures about security or intelligence to disclosures about the lawful activities of the security and intelligence services. If the amendments were carried, it would not be an offence to reveal information about the illegal activities of the service. That would deter such activities, as anyone contemplating illegal activity would know that he ran a greater risk of being publicly exposed. The Home Secretary did not refer to amendments Nos. 81 and 16, and perhaps he will do so later in the debate as they could be accepted without undermining the Government's objectives as he outlined them.
We went over a good deal of the ground in our debates last week, but there are one or two points that I should like to make for the first time. It should be recognised that there may be a particular benefit to society in the unauthorised disclosure of information, even if that causes damage, and such a case is not entirely hypothetical. The Government considered the issue back in 1979 following an adverse report by the Parliamentary Commissioner for Administration and the production of a report by the Civil Service Department called "Legal Entitlements and Administrative Practices". A committee was set up under the chairmanship of Lord Deedes with the advantage of the membership of Lord Croham and a number of other distinguished lawyers and administrators. That report proffered advice from the Lord Advocate's Department in Scotland :
"There would be fraudulent silence if an official had previously given information which he subsequently discovered to be incorrect and failed to communicate the true situation, if that failure would result in the person remaining ignorant of a right to claim." The Director of Public Prosecutions reported that such silence could also amount to a conspiracy to defraud in English law. The Government's committee reported :
"In constitutional terms, the Minister is responsible for the actions of his Departmental staff, who act on his behalf and whose authority is delegated to them by him. This, however, does not absolve the individual civil servant from his obligation to act within the law in carrying out his duties. If he breaks the law he cannot seek to excuse himself in terms of the constitutional responsibility of his Minister."
It is widely understood that the Bill makes the civil servant's position even more difficult than that described in the Government's own document of 1979, and it is interesting to note that the original advice was given by the man who is now Lord Chancellor. The Bill would make the civil servant's position more difficult because it would force him to choose between making an unauthorised disclosure which could cause damage--factually demonstrable damage or conclusively deemed damage--and remaining a silent party to a criminal offence. In advancing the public interest defence, we seek to protect civil servants from that dilemma. That is part of the argument behind my new clause 5, which differs slightly from new clause 4,
Column 472tabled by the hon. Member for Aldridge- Brownhills, although I should be ready to support his new clause if the Minister preferred it to mine.
The form of defence that I advocate would require that a Crown servant should first have taken reasonable steps to comply with established procedures for making such disclosures to the appropriate authorities but that they should have had no effect. I acknowledge freely that that defence is more akin to that under the civil law of confidence in which the balancing of competing public interests is involved. The fact that this can be done had been shown conclusively by the Law Commissions. The Law Commission reported on this matter in October 1981 and the Scottish Law Commission in December 1984. The more recent of the reports, the Scottish Law Commission report, stated the case straightforwardly :
"We have no doubt that the law should be prepared to recognise that use or disclosure of confidential information in the public interest may sometimes be permissible and justifiable. Unless this is clearly recognised, the law on breach of confidence could become a shield for those engaged in criminal or other antisocial activity."
I readily acknowledge that those remarks were made in the context of the amendment of the civil law. The conclusions of the English Law Commission were equally forceful, and its consideration of the common law supports the conclusion that I have described. If the court is capable of balancing public interest considerations in the civil law--as it has in a number of cases--I do not see why it cannot similarly balance public interest considerations in criminal law cases. I put it to the Home Secretary that, while his attempt to distingush may be historically interesting, it is not relevant to the argument.
Mr. Archer : Would not the hon. Gentleman go a step further than that? If it is unjustifiable to apply civil sanctions without making that balance, is it not even more unjustifiable to apply criminal sanctions without doing so?