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Mr. Maclennan : I agree with the right hon. and learned Gentleman. The Home Secretary has shown the weakness of the ground on which he stands by his uncertainty in dealing with the legal situation. He has tried to run the argument that there is no such thing as a public interest defence in the criminal law. That argument has been disproved and displaced, and he has heard examples of such a public interest defence. So he has modified his position to suggest that there is no public interest defence in the sphere of official secrets.
To abbreviate the debate, which no doubt will be a long one, I shall not rehearse at length arguments about the Ponting case. Clearly, in that case a public interest defence was successfully deployed by Clive Ponting and was a contributory factor in his acquittal. The Home Secretary is standing on very weak ground if he is arguing that the law of England on this matter was set out by Mr. Justice McCowan in his statement in that case, and if that is the only ground on which he rests his argument that there is no such defence in criminal law. He has not succeeded in persuading the House.
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The public importance of having a public interest defence cannot be overstated. The Bill is taking existing legal protection away from civil servants and the
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possessors of official information who have good reason to be convinced that there is wrongdoing and that the public interest is served by disclosing this fact.The Home Secretary has argued that the official channels of communication are sufficient. But although improved avenues from those that existed in the past can be used and relied on by a concerned civil servant, to have his concerns ventilated, higher up the service, very few of us, in the light of the "Spycatcher" case, will feel total confidence that the senior civil servants will necessarily take the view of the concerned official, and not the view of the Prime Minister, as she instructed Sir Robert Armstrong to take her case and point of view and contest it in the courts around the world. Few of us believe that in other cases the political view of the political head of department will not prevail against the view of an official who is perhaps at a much lower level that what will be done will be done properly in the public interest.
I do not believe that the law proposed by the Home Secretary is a good law, because it will not work. The sense of public and civic responsibility that imbues our Civil Service will override even the consideration of the possible criminal penalty that a civil servant may suffer as a result of revealing wrongdoing.
This is plainly a response to the "Spycatcher" case and, more directly, the Ponting case. It will fail in its objective, but it will not fail without great hardship and uncertainty and agonising. It will take away from patriotic civil servants who are seeking to put the interests of the nation before the corporate interest of the body in which the wrongdoing is done a legitimate protection that they ought to enjoy in the law of the land, and which they do enjoy in the civil law. There is no argument but that they will not enjoy it in future under the criminal law.
Mr. Richard Shepherd : It is always worth bearing in mind what the Bill does not deal with. It is not about section 1 offences of crime, espionage and treason. It is directing its attention to the generality of Government information in a number of specified areas that we think ought to be secured. The Government contend that that security should descend so low as to cover documents that are currently classified as confidential. We are looking to see whether the criminal law should be appropriate to that. The Government further contend that from as low a degree of secrecy as confidentiality they need to apply two years imprisonment and take in the whole grading of document classification in Whitehall. The Government's proposition to the House in the Bill is that it is necessary to send a man or woman to prison even if he or she reveals crime or fraud or iniquity, without their having any defence or the Government's having to adduce any form of damage or harm. That is an outrageous and monstrous proposition. It is a proposition that tyrants hide behind. It is a proposition that should be rejected by the Commons of Britain. There is no way that this has ever been an acceptable contention outside the Napoleonic wars or the darkest days of the Stuart monarchy. It is something which we fought to overturn. A Conservative Government come to the House and contend that it is necessary to send someone to prison for up to two years, without his having a defence, even if the information relates only in Civil Service classification terms to "confidential". I think that that proposition is one we should want to reject.
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We have failed to look at the classification, or succeed in encouraging the Government to be more generous in their view of who should be covered by the absolute offence category. We learnt last Wednesday, in an extraordinary debate, that the Home Secretary, or the Government of the day, can nominate anyone to be covered by the category of absolute offences. That, therefore, means that, should it be in the mind of a Home Secretary who is neither as benign as my right hon. Friend nor a Conservative--it is for a generation later that we are legislating--he could nominate the editors of newspapers if necessary, if in his opinion the measure was so loosely drawn that the Government would not accept that it required refinement to meet what they had been saying offstage.We have often had this sort of difficulty when pressing new clauses and amendments. There have been press releases making assertions about the damage test. I have heard my right hon. Friend talking about serious damage. The Government write to newspaper editors and say, "We will prosecute only where serious damage is involved." They write to the hon. Member for Linlithgow (Mr. Dalyell) and talk about serious damage. On Second Reading my right hon. Friend the Home Secretary talked about serious damage being incurred before the Government would invoke the criminal law.
Yet look at the Bill. It does not mention "serious damage" anywhere. It trips down a degree of classification, and says "damage"--in order to meet some of the contentions that a man or woman should go to prison, possibly without a defence or the opportunity to mount one, or that the Government have only to establish the lowest level of damage : confidentiality. In some cases the evidence is so stacked against the defence as to make it difficult for them to overcome the prosecution's contention on a narrow front, such as that the Home Secretary did not take up or respond to clause 3(3) in which it is deemed that damage is effective because a document is confidential. Almost every document I have ever heard about in Whitehall, or between Governments, is marked "confidential", so that trivialises the damage test that the Government have to meet. That is why we say, having been unable so far to coax the Government into generosity and a realisation that they are the representatives of the British people, through the House of Commons, and not the state aggrandising itself at the expense of the House of Commons, that there ought to be some amelioration of the Bill, and some brake on the Attorney-General raising a prosecution on the basis of something which is trivial, but could possibly succeed in a criminal prosecution in the courts. That is why my hon. Friends, and right hon. and hon. Gentlemen in other parts of the House, have expressed a desire for some form of public interest defence. As I said, it is not as caricatured in the White Paper. It is set out fairly specifically in new clause 4.
Mr. William Powell (Corby) : Supposing a jury is trying a person charged under new clause 1, which has been tabled by the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), and they conclude that the disclosure was not in the public interest but that, when it was made, the man being prosecuted genuinely believed that it was in the public interest for it to be disclosed. Would that ensure that he would be acquitted?
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Mr. Shepherd : Until now I had assumed that my hon. Friend was a distinguished lawyer. I understood that that was his profession. It is for the jury to determine guilt. If they find that the man has committed an offence, no matter of his calling out that it is in the public interest, they will determine his freedom. The jury will decide. In those circumstances, the jury will find him guilty. The point about a public interest defence is that there is a mechanism for the individual to say that, in the public interest, the revelation of crime or fraud overcomes the fact that he released a confidential document and therefore overcomes the fact that the prosecution merely has to prove that he has done some trivial damage. The jury can weigh in their consideration whether his revelation of fraud or of crime was in the public interest. That does not stop the disciplinary procedures of the Civil Service coming into play. It does not mean that the man will not be dismissed, but it means that he can at least say, "I have acted in an honourable way." I read in The Daily Telegraph of last Monday
"Whistleblower law to break Left's grip".
It seems that the Government, through their new Local Government and Housing Bill--I have no doubt that if I or The Daily Telegraph have got it wrong we will be corrected--will seek to appoint what The Daily Telegraph, I am sure, wrongly characterises as whistle blowers
"empowered to speak out against illegal or unfair actions as part of a campaign to raise standards of local government".
What they think is sauce for the goose is not sauce for the gander. I do not know whether many people would say that crime or abuse goes on-- The Daily Telegraph refers to illegal or unfair actions--in local government. We want it revealed. I should think that all hon. Members will march through the Lobbies in support of that contention.
Mr. Robin Corbett (Birmingham, Erdington) : The hon. Gentleman is quite right. There has been the most disgraceful leak. The Local Government and Housing Bill was published yesterday. The name "whistle blower" does not appear in the Bill. He is generally called a monitoring officer. In all other details, the hon. Gentleman is right. The Bill refers to contravention by the authority, by any committee, and so on, of the rule of law or of any code of practice, maladministration or injustice. It is on all fours with the hon. Gentleman's point.
Mr. Shepherd : I am grateful to the hon. Gentleman.
Mr. Kenneth Hind (Lancashire, West) : I stand in defence of my hon. Friend the Member for Corby (Mr. Powell). Is there not a major flaw in new clauses 1 and 4? It is what the person making the disclosure actually believes-- [Interruption.] No. New clause 4 states that he must have
"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."
If a person did it in good faith and had reasonable cause at the time, but it is wrong, the jury will acquit him, despite the harm and damage to the national interest. The new clause relates to what a person believes, not to what the situation actually is.
Mr. Shepherd : The person must demonstrate to the satisfaction of the jury that he has met the criterion--that he has proved that the disclosure or retention of the
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information, document or other article was in the public interest. As the Home Secretary has been arguing, it is then that the jury comes into play. It is for the jury to decide.6.45 pm
Sir Ian Gilmour (Chesham and Amersham) : On a more fundamental point, the defence must have a reasonable cause to believe. A defendant cannot say, "I believe that." If it is idiotic, the jury will not allow it. It is reasonable cause, which, to some extent, is an objective test.
Mr. Shepherd : At the end of the day, that is the test. We may be sending people to prison. We are prepared to enact this legislation for people revealing crime or fraud. The Government say that that proposition is quite right.
At one stage last Wednesday hon. Members learnt of the wig maker of a former head of the Civil Service in 1918. The Minister said that it was an operational matter. It was quite right too, he told hon. Members, that that individual should be prosecuted. We want to ensure that that sort of nonsense is not contained in the Bill or could be interpreted by a court of law. Therefore, we are trying to provide the means by which a jury and, therefore, the House can be alerted to facts about our national life.
Mr. Hind : I should like my hon. Friend to consider this point again. He is discussing the public interest. The public interest is exposed in his argument, but he must look at the test that follows, which would show a jury what the public interest is. His test of defining the public interest is what the person making the disclosure reasonably believes is a criminal offence or whatever. If that is erroneous, much damage can be done to the public interest.
Mr. Shepherd : My hon. Friend misunderstands. If a person's judgment is erroneous, he is guilty and will be sentenced accordingly. He will be found guilty by the jury. It is a jury point.
Mr. Shepherd : I join my right hon. Friend the Home Secretary in asserting the value of the jury in determining the matter. It is in that spirit that one moves this contention.
There is the argument in the Duncan Sandys case which is well remembered by hon. Members who have long memories or are better read. That case occurred before the war, and the Committee of Privileges examined it. It made the point that--it follows what the hon. Member for Linlithgow (Mr. Dalyell) said--to go to a Member of Parliament is the right of every citizen in this country. One cannot express the freedoms and rights of the people without having access to a Member of Parliament. That is essential. With this legislation we do not provide the right to those covered by absolute offences to go to a Member of Parliament. We discover that we do not allow them to go to a solicitor. As I understood the debate last Wednesday, a man in the designated category or in the security services could not even seek advice from his solicitor because he would be imparting information that was contrary to the Act. It is an absolute offence--any information to any person. I hope that my right hon. Friend the Secretary of State will amend the Bill to take account of that fact.
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Mr. Gorst : Even though a man may not be able to go to a solicitor before he has committed an offence, he presumably will do so after he has committed it.
Mr. Shepherd I certainly hope so. My right hon. Friend and the Minister of State are always happy to remind us to read carefully what they have said, as one does. As I understood the debate, that is exactly what was said. It is an offence to reveal any information to anyone, to which the Minister added, "and quite right too".
Mr. Archer : Does the hon. Gentleman agree that the Minister of State appeared to say that someone would have committed an offence but that there might be some difficulty in proving it?
Mr. Shepherd : I do not want to detain the Committee, because many hon. Members want to speak. We are asking why it is right to send someone to prison without a defence for revealing a crime or fraud. Is it not necessary in our democratic country to know when crime or fraud are committed in Government? We cannot have accountable Government unless we know what they do. If we erect barriers so that we deny the citizen and the House the ability to know that information, we may never be able to judge appropriately and properly whether the Government are ethical, appropriate and working in the interests of this country.
Mr. Merlyn Rees (Morley and Leeds, South) : It is always a pleasure to speak after the hon. Member for Aldridge-Brownhills (Mr. Shepherd). He brings passion to issues which over the years have become pedantic. They come as much alive as the constitutional debates of the 18th century. As an older Member of Parliament, I simply say to him that it raised my heart to hear him talk as he did about the role of a Member of Parliament. Listening to the debate last evening, I wondered whether the role of a Member of Parliament had degenerated into knockabout farce to replace the music halls. The way the hon. Gentleman dealt with a difficult issue lifted my heart. I am glad to speak after the Home Secretary, because what he said added force to my view that, on this subject and many others, it is difficult to get the legislation right. Earlier in the debate, there was a reference to four former permanent secretaries who wrote a letter to The Times about procedures within the Civil Service. The Home Secretary explained that they were arguing that the Government's proposals did not go far enough. I simply use that example to show that the Government think the Bill goes far enough, but that those former civil servants said that earlier changes did not go far enough.
As to my experience of the Official Secrets Act 1911, I want to refer to the Franks report. I was a member of the Franks committee which so many called in aid when arguing in favour of reform of section 2 of the Official Secrets Act. I do not believe that any of us who were members of the committee at that time thought that we had got everything absolutely right. I certainly did not when, years later, I made a statement in the House and issued a White Paper. I accept that no Bill was forthcoming in my day. We see what is happening now, when the Government have a majority of over 100. With a majority of minus three, the Leader of the House would have put me in my place if I
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had proposed legislation. We had not reached the point of dealing with certain issues, not the least of them being the question of the public interest.When I was on the Franks committee, the Prime Minister of the day gave evidence to it. In a different context, I accept, he said that there should be a new defence that publication was in the public interest. Therefore, I could not forget that, when I eventually introduced legislation, it had to include something about the public interest, however difficult it was.
When the Home Secretary talked about the public interest, he confused me. It is not very difficult to do so in this respect, because I am not a lawyer. I do not wish to be disrespectful to the Home Secretary, but I wonder whether there should be a Law Officer on the Treasury Front Bench. Lawyers, distinguished or otherwise, have been arguing about what the Bill means. If they are doing that here, before the legislation receives Royal Assent, heaven knows what will happen when they get into court.
I ask the Home Secretary to read paragraph 37 of the Franks report, headed :
"Control over prosecutions by the Attorney-General and the Lord Advocate."
The paragraph says :
"This decision is taken by the Attorney in his capacity as the Crown's senior Law Officer, responsible for the enforcement of the criminal law, not in his capacity as a Minister in the Government of the day. In deciding whether to prosecute he applies his judgment to the balance of public interest involved."
At the moment, this public interest aspect is firmly in the legislation. I remember the then Attorney-General approaching me from what seemed a long distance across the room. He wanted to consult me, although making it absolutely clear that the decision was his, about whether it would be in the public interest to prosecute. The Attorney made his own decision on that case, although he consulted others--including, I think, the right hon. Member for Plymouth, Devonport (Dr. Owen). We were not consulted together, but the Attorney was taking a view of the public interest.
The names of the Law Officers are in the Bill. Therefore, will not the Law Officer still take a public interest view before deciding whether to prosecute?
Mr. Archer : So that we may keep our minds clear about this, does my right hon. Friend agree that the question whether it is in the public interest to prosecute is a very different question from whether it was in the public interest to make the original disclosure?
Mr. Rees : I understand that. That is why I am raising the matter. It is with diffidence that I return to the Home Secretary the point that if there is a Law Officer public interest concept in the legislation at all, there ought to be a public interest concept somewhere in the original decision.
The public interest is a vital concern in the legislation. I realise that we have been debating the amendment for a long time ; we will probably still be debating it at 9 o'clock or 10 o'clock, because it is a most important issue. I hope that we do not hear talk of a closure. This is an important issue, which the House has to tease out and discuss. It is not enough to argue that the amendments in the names of my right hon. and hon. Friends and other hon. Members have been drafted wrongly. The Government should have a chance to come back to us on Report. I hope that there will be a Report stage. Government Whips may come in
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and say, "My God, are they still at it? What time are we going to take?" But this is not the Water Bill or another privatisation Bill, important though they are.As the hon. Member for Aldridge-Brownhills made clear, the public interest in a democratic society is an important issue. Whatever Government are in power, society has every right to protect discussion and papers. We are arging about the balance of public interest, which changes from decade to decade. When I came to the House, less knowledgeable on these matters than I am now, I found hon. Members on both sides of the House who were concerned about such issues although they did not loom large in the so- called quality newspapers. The whole issue has developed since because of cases. I do not believe that we have heard the end of cases. People being what they are, there will be other cases. Therefore, it is important that we examine carefully the matter of the public interest.
I base my remarks on what the Franks committee reported nearly 17 years ago. What came out then is relevant to what we are talking about now. The recommendations which we made were based on words written with all the majesty of a proconsul--like Lord Franks, with all his experience in Government service, in wartime, in the university world and as an ambassador eventually in Washington. He was a most remarkable man. Paragraph 116 of the report said : "National security is widely accepted as the prime justification for employing criminal sanctions to protect official information." That is where I start. Later we said :
"In our view, the appropriate test on this basis, in relation to national security,"--
we are talking about national security--
"is that unauthorised disclosure would cause serious injury to the nation."
I do not want to quote much more, but reading it afresh brings it all back to me. In paragraph 118, we said :
"This means that the criminal law would not apply to information the unauthorised disclosure of which would cause some injury to the interests of the nation, but short of serious injury."
Many people would be surprised on reading this to see that it is "serious injury" and not "some serious injury".
However difficult it is to draw it up, that should be the basis of any legislation. How does one make one's judgment on that? I admit that there were difficulties in that respect. I would like to relate the matter to current issues. We said that criminal proceedings would be taken only against issues--documents, I suppose, in detail--where the mark on the paper was "secret" and above : that is, "secret" and "top secret". I admit, too, that the difficulties were that classifications of Government documents are for administrative purposes. As hon. Members will know, they are the vehicle by which civil servants know how to protect the contents.
There are far more classified documents in the Ministry of Defence, the Foreign and Commonwealth Office, the Home Office and the Northern Ireland Office than there are in the Department of Education and Science. How are they protected? With "secret", for example at the top of the document, the private office knows how to handle them. Whether the classification told the truth about the nature of the document went out of the window long ago. Classifications were an administrative device. We felt that
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there would have to be a clean out in Government service, that the classifications would have to be changed, and that documents within the Government service would have to be looked at from time to time to see whether the nomenclature at the top bore any sense. At home I have some documents which were issued when I was Northern Ireland Secretary with, I believe the nomenclature "confidential". They were reports about what the press had been saying about the situation in Northern Ireland at a difficult time. Given the feelings in the Northern Ireland community at that time, if that document had gone out of the Northern Ireland Office, heaven only knows what conspiratorial thoughts would have arisen. The classification, therefore, was perfectly proper, but about six months later one could have used those documents to wrap up fish and chips down the Shankill. The classification was right at the time but wrong a few months later.What do the classifications mean? I shall relate it to the Government's current problem. Let us start at the lowest classification :
"RESTRICTED. Undesirable in the interest of the nation." It says underneath that :
"The interests of the nation' are interpreted broadly." The classifications continue :
"CONFIDENTIAL. Prejudicial to the interests of the nation." "SECRET. Serious injury to the interests of the nation." That is why we picked up the words "serious injury". Then : "TOP SECRET. Exceptionally grave damage to the nation." I picked that matter up because the other night, on "Newsnight", there was last week's leaked document about the White Paper on the reform of the National Health Service. At the top of that document, it said "Secret". In other words, if that document had got out, what it was saying was that it would cause serious injury to the nation. I do not believe that for one moment. What should have been at the top of that document was : "Keep this quiet until the Minister has revealed it in the House of Commons next Tuesday," and it should have been treated in that way. But secret? The classification was being used for administrative purposes. If the Government ever find out who leaked it--although today's Evening Standard puts a different interpretation on who did leak it--the treatment of the man or woman concerned would be determined under the Franks recommendations, because of the word "secret" at the top of the documents. Whatever the Government say, it is important, when deciding these new clauses and amendments, to hold on to "serious injury" as properly defined. We shall have to put our minds to that definition, because there is a public interest.
Something I did not realise until I was on the Franks committee--not many other people knew it either--was that under the legislation, there had grown up conventions--let alone what was in the Act--that whether people had given information away was determined by whether they were authorised. We then discovered that some senior civil servants and Ministers were self- authorising. That meant that if a civil servant on the clerical grade leaked a "secret" document he was in real trouble. Of course, we are not talking about spies and section 1 of the Act. If a senior civil
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servant leaked a secret document or talked about it over lunch, he would not be in trouble. Similarly, if the Minister did it, it would be self-authorised.The question of authorisation is extremely important in the light of the story in the Evening Standard , which I do not believe. I wanted to use the article to authorise this story. It says : "No. 10 dilemma will they tell Maggie?
Affair of the Cabinet grass."
It says that it was leaked by a Cabinet Minister, but I do not believe that for one moment.
Mr. Buchan : Will my right hon. Friend give way?
Mr. Baldry : Will the right hon. Gentleman give way?
Mr. Rees : Let me get my other line in.
I have never known of a Cabinet Minister coming back to the House after a Cabinet meeting and talking to the press about what had happened that morning. I believe that that is a fiction, from the imagination of thriller writers. However, if it happened, it would be self-authorisation. That raises an important issue. It is an issue which goes back to the Duncan Sandys case, which was a much more important issue. If this were to be a Cabinet Minister, I bet that he or she would not be brought to court. I believe that the Attorney-General would say that it was not in the public interest to bring the matter before the court.
Mr. Baldry : Of course, the only reason that that has come out in the Evening Standard is that the press has to give some explanation of why the hon. Member for Livingston (Mr. Cook) performed so appallingly at the Dispatch Box on the National Health Service White Paper. The only justification the press could come up with was that it was in some way a leak from the Government Benches to throw him off his stride. The truth is that it was undoubtedly an unauthorised leak and, even given four days studying it, the hon. Gentleman still muffed it at the Dispatch Box.
Mr. Rees : As I wake up in the morning, the first thought that comes into my mind is not that I am not at the Dispatch Box. The hon. Member should take into account the fact that one is not eaten up with great ambition to do that, but it just happens. If the hon. Gentleman is saying that this did not happen, and the media have made it up, he must forgive me. However, if we suppose that it happened, what would the Attorney- General do if it came to his notice, via MI5, which apparently has a role in all this business, including business connected with hon. Members on the Floor of Parliament?
Mr. Buchan : My hon. Friend is being too moderate about this matter. He says that he does not believe this story, but surely the question is whether he has reasonable cause to believe it.
Mr. Rees : What we are showing this evening--I hope the Government will allow us to have such a discussion on the other clauses--is that it is important to have a discussion on this clause. In the second major group of amendments, we should find something called the "public interest".
I went into the court during the Ponting case because the documentation was not "secret" and above. It was the Government who said that it was not a matter of national security. The man should have been dealt with in other
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ways and not brought before the court. If it had been a matter of national security, there is no way I would have become involved, but it was not a matter of national security. It is national security and serious injury that should be the linchpin. The rest should be dealt with in the Government service by the sort of procedures that major firms have and all of us have in any organisation to which we belong.I ask the Government to give us a chance. It will come up again in the Lords, when very eminent lawyers will be talking about it. There is a case, in a free society, on that balance, as Attorneys-General have had to take into account over the years in a very non-political way. Is it in the public interest? That was the question Sam Silkin put to me on one issue. Whether his decision was right or wrong is not a matter for me. There ought to be a matter of public interest in this legislation.
Sir Ian Gilmour : I speak in support of new clause 4 in the names of my hon. Friends the Members for Aldridge-Brownhills (Mr. Shepherd) and for Thanet, South (Mr. Aitken) and other right hon. and hon. Members who, as we know, recommend the public interest defence. Having heard my right hon. Friend the Home Secretary and having read his speeches on the subject, I am still not clear why he does not accept new clause 4. I should have thought that the Government would be in favour of people acting in the public interest, instead of which they are strongly against it. I should like to look at the reasons that have been given. I do not want to enter into the argument between my right hon. Friend and the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) about whether there is a public interest defence under the present law. That does not seem to me to be altogether relevant. But I was surprised by what my right hon. Friend said about the Obscene Publications Act 1959. Although certainly that Act is defective, he would surely concede that it is a great deal better than what went before, so it does not become him to denigrate the defence in that. I think that he was perhaps not speaking under full advisement.
The point is that whether there is or is not a public interest defence under the present law is not relevant now because in the spheres with which we are dealing the law is becoming stricter. We all concede that that part of the Bill is excellent. The Home Secretary has cleared away the criminal law from great areas, but by implication he agreed that the law is becoming stricter in certain spheres when he said originally that the present law was too weak and too wide. Clearly he is now making it narrower and stricter, so the absence of a public sector defence now--if there is such an absence--is not relevant to what should happen in the future.
New clause 4, which is much the same as new clause 1 but meets the point to which my right hon. Friend the Home Secretary referred, ensures that a civil servant or public employee would have to go through the established procedures and that those procedures would have to fail before the public sector defence would operate. Then, as we know, the defence would be existence of crime. I cannot believe that the Government would like crime by a public servant not to be revealed--or would they? I should have thought that the Home Secretary, especially in view of his other responsibilities, would have been quite strongly against crime. The same surely applies to fraud, abuse of
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authority and negligence. I thought that my right hon. Friend the Home Secretary rather trivialised the matter when he referred to not answering a letter. Clearly that would not apply. The idea that the jury would listen to such a defence is clearly wrong.New clause 4 is fairly strictly drawn. It would not enable a defendant to say that he did not believe in the Vietnam war, the Falklands war or the Nigerian civil war. It is not a question of disagreeing with public policy. He would have to have found some crime or misdemeanour--something very wrong in the public service--that he was revealing. I cannot see why my right hon. Friend the Home Secretary is not prepared to go along with that. He said earlier that he was against such a defence because it should be no part of the narrowly targeted scheme that is proposed, but it is difficult to think of this law as a narrowly targeted scheme. It is more like a blunderbuss than a precision instrument, so that argument seems irrelevant. My right hon. Friend said that confusion would be brought into the law where the Government are seeking to achieve certainty, but there is seldom any certainty in the law when my learned colleagues on either side of the House, or indeed in the courts, get at it. For anybody who has listened to the debate either today or last Wednesday to think that there will be any great certainty in this law is surely an illusion.
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What my right hon. Friend must have meant was that it was better to have a certain conviction than a defence which might get someone off. I cannot see what other meaning that sentence could have. Surely, on reflection, my right hon. Friend would agree that it is much better to have a slightly uncertain law which will prevent injustice than a certain law which will lead to people being wrongly and unjustly convicted. That is what the argument is about.
I suppose that my right hon. Friend will say that this is a matter that should be left to the jury. We all have great faith in the jury and are very pleased that the Government are going to allow it to continue and are not going to throw it open to any form of market or put it up for auction-- that it will remain as a palladium of our liberties and so forth. It is very important that the jury should continue, but the jury is not infallible, as the Home Office has every reason to know.
I certainly have every reason to know it because one of my constituents was wrongly convicted, had his life ruined as a result and was then let out by one of my right hon. Friend's predecessors. That illustrates how wrong a jury can be. It was not in any way the fault of the judge, who summed up in favour of the defendent. It was the fault of the jury--and, of course, the fault of the Court of Appeal which said that the jury could not be wrong and must be infallible. The second time round they got it right, but by that time my constituent's life had been more or less ruined.
It is not enough, therefore, to leave it to the jury. The law must be clarified so that the jury knows what it is allowed to consider and what it is not allowed to consider. It is surely far better for the jury and for the law that people who are acting correctly in the public interest should not be sent to prison for doing something which most people would think was right.
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As the arguments that we have heard against the public interest defence have been extremely threadbare, I hope that the Government will think again.Mr. Foot : May I first make one or two personal references. I do not mean them in any offensive way, but I want to refer to one or two hon. Members who have spoken earlier in the debate.
The right hon. Member for Castle Point (Sir B. Braine), the Father of the House, tabled a new clause and apparently received a favourable response from the Home Secretary, who indicated that the right hon. Gentleman had understood the Bill and the new openings that would arise if it went through. Therefore, the dangers that the right hon. Gentleman described when in the past he played such a distinguished part in bringing these matters to the House did not arise. It was all covered by the Bill.
I certainly hope that that is the case. The right hon. Gentleman raised important matters. I say that particularly because he referred to the work of the Health and Safety Executive, which I was responsible for establishing. It was largely because of the right hon. Gentleman's activities that we ensured that the HSE covered various areas. So I hope very much that it is true that, as the Home Secretary seemed to suggest, the public safety problem is now removed, and that it will be confirmed by including the new clause, or the equivalent of its words if the Government do not think that those words will do the job satisfactorily, in the Bill. I believe that that would assist and I hope that everyone would be satisfied. It was very important that my hon. Friend the Member for Linlithgow (Mr. Dalyell) reminded us at the beginning of the debate of the Ponting case, which was one of the origins of the Bill--it was not the sole one, but obviously it had an effect on the Government's thinking. It is right that the House of Commons and the Government should draw the proper conclusions from that case. The Government have drawn the wrong one, but that is another matter.
My hon. Friend the Member for Linlithgow was right to raise the matter afresh because it is part of the proper prelude to this debate. I emphasise that, because I disagree with my hon. Friend about the Belgrano affair. I have never thought that he was right about that because that ship might quite easily have returned to the battle line. However, that does not alter the fact--indeed, it reinforces it--that it was wrong that false information should have been given to Ministers at the Ministry of Defence. It was also wrong that Ministers were prepared to purvey some of that false information to the House.
It is pretty wretched of the right hon. Member for Henley (Mr. Heseltine) not to turn up for these debates--I think he is still a Member of the House. He should have come to speak, particularly on matters in which he had a close interest at the time. Many hon. Members will remember the speech that the right hon. Gentleman made at the time of the Ponting affair. He should come to the House to say whether he still holds the views that he tried to persuade the House to adopt at that time.
The Ponting case has affected this legislation and it is important that we should examine it carefully. The origin of the Bill is not, as the Home Secretary said, that the Government carried out a general examination of the way that present legislation was working, examined the Franks
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