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Column 485report and came forward with a great liberal reform. That was not their motive for introducing the Bill--although they did examine the past.
Two cases inspired--if that is the proper term--the Government to introduce this legislation. I can clinch that claim by asking hon. Members to imagine how the Home Secretary persuaded the Prime Minister to give both her and her Cabinet's support to the Bill. Does anybody imagine that he went to her and said, "I propose to deal with the official secrets trouble that we have experienced over the past few years by introducing a great liberal reforming measure that will make it easier to deal generously with such cases"? The Home Secretary would hardly have persuaded her on the spot with such an appeal. The right hon. Gentleman did not say to the Prime Minister, "This is the way to establish your great liberal reputation and make your predecessor's Administration seem a reactionary one." I picture it another way, with the Prime Minister asking the right hon. Gentleman, "Well, can you assure me that your change in the law will mean that we shall not have another Ponting or Spycatcher' case? Will it solve difficulties such as those two?" Whatever variations the Government permit in other parts of the Bill, and I hope that some will be made, solving such difficulties forms the linchpin of the Bill.
Central to the Bill--we discussed it last week, too--is the fact that the Government say that they will lay down for the first time an absolute principle of confidentiality, combined with a refusal to permit a public interest defence. The Government believe that those two factors will ensure that they have a new form of protection for official secrets, and that they will not have to suffer the humiliation of another Ponting or "Spycatcher" case. It is likely that the Home Secretary gave the Prime Minister assurances on both those matters.
It is also probable that Law Officers were invited in to discuss the matter. It is deplorable that those Law Officers are not present for this debate. I mean no disrespect to the Minister of State, who stood up to last week's blast and battering with great fortitude and allowed many other hon. Members to put their arguments. I do not class him with some of his colleagues of similar rank in other Departments--the parade of parliamentary popinjays--with whom this House has to put up. However, I say to the Minister and the Home Secretary that it is scandalous that the Bill should be carried through the House with no Law Officers present-- particularly when, as I have said, it was the mistaken advice that they gave over the past two or three years that was largely responsible for the Government's difficulties.
In the Ponting case, the Law Officers' advice turned out to be wrong. The "Spycatcher" case was an even more glaring, persistent and expensive affair which continued month after month, with the Prime Minister and Home Office and Foreign Office officials asking the Attorney-General and the Solicitor- General for their advice. Now, when we come to make a change in the Bill, we do not even have the chance to see whether the Law Officers agree with our interpretation of the Bill.
The Home Secretary has frequently attended the debates, but is not qualified to tell us the exact legal position. He has not answered the demands made by Opposition Members. It would have been much better if the Minister had arranged for the Attorney-General to wind up the debate on this central part of the Bill. We need
Column 486to know whether it is time that no public interest defence existed before. The Home Secretary is wrong to say that, and the more he repeats it, the more he injures his case. He should understand that a public interest defence has been used effectively in the past in the cases of the hon. Member for Thanet, South (Mr. Aitken) and of Ponting and "Spycatcher".
When the "Spycatcher" case went to the Law Lords, they expressed a different view on the matter from that persistently taken over the previous two years by the Executive, as advised by its Law Officers. The reason for the Bill lies in all these past events. However, instead of drawing the proper conclusions from them and declaring that the law should be made more liberal, the Government have introduced a Bill that tightens the law and removes the public interest defence from some parts of it.
The right hon. Member for Old Bexley and Sidcup (Mr. Heath) first raised the Sandys affair to which I referred last week. The Minister of State rightly said that he did not know as much about it as I did. He spoke as if it were not a matter of major consequence, but it was. It was not only that it involved the Committee of Privileges, although that was an important element. The Duncan Sandys case was referred to the Committee of Privileges. That offered protection to a civil servant or a member of the defence services because it allowed him to approach a Member of Parliament. That was extremely important, but the matter was never brought to a conclusion.
The Government of the day were one of the most wretched in our history and would have pursued Churchill and those associated with him in the most bitter manner. At one stage, they almost tried to destroy him in his constituency. At that time, Churchill had to be careful about the way in which he defended himself because the Government would not have refrained from convicting him, Duncan Sandys and his associates of being guilty of betraying the nation. 7.30 pm
I remember the spirit of vengeance that sometimes prevailed in the Whips' Office of the Conservative Government at that time. They were very bitter times. Even then, Churchill said that the Government could not proceed with an official secrets Act of that kind. He said that there must be proper protection not only for a civil servant to be able to approach a Member of Parliament, but also for the patriotic citizens who said, "We shall tell Churchill and other people what are the real dangers."
That defence was operable at that time. The matter did not go to a court. There was a general consensus that, in the last resort, Churchill and his associates could not be pursued. That was an estimate of the element of public interest involved in the affair. A public interest defence was available to people approaching a Member of Parliament. There was a public interest defence in that critical issue even under the wretched Official Secrets Act 1911 which we all know must be abolished. Let no one deny that they were critical issues. They involved the life of the state and people had to make up their minds what they were going to do. Some brave people decided to defy what was apparently the Government's view at the time, and that view was as obtuse as this Government's approach to the Bill. Mr. Hore -Belisha and Neville Chamberlain said that all right rested with them. They claimed to be the people who knew and had to be obeyed. They were the Executive with
Column 487the almighty power. Anyone who tried to trespass on that had to be dealt with by being driven out of public life. That is what would have happened if Churchill had gone down on the Duncan Sandys case. It would have been impossible for people to estimate the consequences for this country. Given that background, it is pitiable for the Government to say that they are dealing with the question properly when they come to the House and cannot answer the question whether the people who took the honourable course of telling Churchill at the time of the Duncan Sandys case and thus broke their oath had done right.
The Government should take away the Bill and introduce much better proposals to deal with the matter. New clause 1 covers the question of a public interest defence better than any of the other new clauses. However, if the Government proceed with the Bill without any legal advice, with nothing but their majority on which to rely and with scarcely any discussion or attempt to listen to anyone, it will destroy for ever the Home Secretary's liberal reputation. His reputation stands a good deal higher than that of most of his colleagues, but, if he rams the Bill through in the face of such opposition, he will live to regret it all his life. I plead with him to go back to the Cabinet and say, "We shall have a public interest clause in this Bill because the House of Commons demands it."
Mr. Edward Heath (Old Bexley and Sidcup) : Having had an opportunity to join in the debate on an earlier occasion, I hope that this will be a brief contribution. On that occasion, I congratulated my right hon. Friend the Home Secretary on tackling this immensely difficult task. Today's debate, which has been serious and, in many ways, fascinating, has demonstrated both the problems involved and the skill with which the Home Secretary has attacked the problem. The Bill is undoubtedly an improvement on what we discussed in the White Paper, but, at the same time, I do not believe that it is by any means absolutely right at present. I hope, therefore, that my right hon. Friend the Home Secretary who, naturally, from time to time shows slight impatience with our difficulty in understanding some aspects of the Bill, will regain all his patience, put up with us and recognise that there is great force in most of the arguments that have been put forward in the debate so far.
My right hon. Friend appeared to make his contribution with an unaccustomed rush. I am not sure whether he was trying to hide what he was saying or whether he was trying to prevent us from realising what he was not saying. However, I hope that he will examine these points because they are of immense importance. He can claim that arrangements are now made for civil servants who are aware of evil in their work to go up the ladder and endeavour to put matters right. We must ask ourselves, as has already been asked, exactly how practical that is.
A civil servant who complains will be told, "I must refer this to my senior officer". The matter will go up the ladder until it reaches the permanent secretary. After a chat at the customary weekly lunch of permanent secretaries, the permanent secretary will then say, "I must tell the Minister". The Minister will say, "I didn't realise all this was going on, but for heaven's sake keep it quiet--tell the fellow that it's all being dealt with and for heaven's sake don't let the press know about it". At what stage does the civil servant take action? The Minister may say, "I must tell the Prime Minister," and the Prime Minister will say
Column 488"For God's sake, think of that by-election-- we must tell the fellow that we understand his anxiety but that it's really not justified." What happens after that is crucial. I put it in a light- hearted way, but it is the crux of the matter. Does my right hon. Friend the Home Secretary believe that there is, or can be, a difference between the national interest and a Government's interest? That is the fundamental question. In my mind, there is no doubt about it because it is exactly the same with all constitutional philosophers throughout the ages. There is very often a difference between a national interest and the interest of a particular Government. When we are in opposition, we constantly point out in the House the great difference between the national interest and the interest of the Government then pursuing their policies. If we accept, therefore, that there is a difference between the national interest, described here as the public interest, and a Government's interest, we must find a way of safeguarding that difference. That is what this debate, the Bill and the Franks committee report are about. How can that difference be safeguarded?
The best suggestion that we have had so far--on the new clause tabled by my right hon. Friend the Member for Castle Point (Sir B. Braine)--is that the public interest must be taken into account. I would describe as artificial the point that has been made by lawyers among my hon. Friends about proof of reasonable judgment that the public interest was taken into account by the offending person. I would go further than the deputy Leader of the Opposition, the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), who gave an example of corruption at an ordnance depot. He went so far as getting it put right. In my view, Parliament and the country have the right to know that the corruption existed and had been put right. I therefore go a stage further than the right hon. Gentleman, but I think that we agree. When evil has been committed and has been put right, it should be made known. If evil is committed, it should be brought to the notice of those who have to deal with it and if they do not deal with it it should be brought to the public notice. When it has been dealt with--and the action taken--the matter should be made public.
Mr. Heath : Yes, I would go along with that. Civil servants want more safeguards because they recognise the way in which civil servants are likely to react under the present system. One must be realistic about this.
I do not want to go over the matters which were raised by the right hon. Member for Blaenau Gwent (Mr. Foot) about how all this came about. The present Government have a problem about leakages--there can be no doubt about that--and they have sometimes sought to deal with them by prosecutions. Their problem arises from the fact that they have used their press office at No. 10 in a way which can be described as corrupt--in a way which went far beyond not only the achievements but even the aspirations of any previous Government. I am not asking the Home Secretary to nod his head in agreement with that, but he will know from his experience at No. 10
Column 489between 1970 and 1974 that what I have said is the case. If the lead is given in that way, others might be expected to follow it. I have always had the greatest respect for the right hon. Member for Morley and Leeds, South (Mr. Rees), a former Home Secretary, though this evening he displayed extraordinary naivety when he expressed the view that it was impossible for any member of the present Cabinet to have left a Cabinet meeting and told the press and others about the contents of the National Health Service paper. One of this Government's problems has been that, as differences inside the Cabinet have been so great--leading to the sacking or withdrawal of 22 members over the past few years--the tendency to talk has been irresistible. That has been followed by others at different departmental levels, and it is now part of the problem with which we have to deal.
I hope that the Home Secretary will accept the proposed new clause, or accept it in principle and say that it requires amendment. I do not understand how there can be any solid objection to the inclusion of public interest. It has been said time and again that there must not be any question of public interest, even though we have heard that it exists in, for example, the law on obscene publications. The Home Secretary sounded what I thought was an ominous note when he said that the law on obscene publications was unsatisfactory. Does that mean that we are to have another prudish attack on the laws of this country, taking us back to the time when people had to go abroad to read what they wanted to read? Are we to have that from the present Home Secretary-- [Interruption.] That is an interpretation of what my right hon. Friend said.
I see no reason why the public interest should not be embodied in the Bill. Speaking from experience, in the Leila Khaled case, the Attorney-General said that he had to take the public interest into account, and he did. Why cannot the public interest be taken into account in this legislation?
Dealing with health and safety, the Home Secretary said that it was most unlikely that a prosecution would be brought in certain cases. It is not enough to use the phrase "most unlikely" in this Committee. We have every right to say that we want to be absolutely sure, and we want it in a form that will enable us to be absolutely sure that the kind of action about which we have been speaking will not be taken. When we last discussed this issue, I said that my test for all this was a simple question--under this measure, in this country, if it occurred, would we know about Irangate? That is still my test, though my question has not been answered. We would not have known anything about it. We would not have known about the evil policies, the hypocrisy, the corruption and the lies of President Reagan's regime. Is that justifiable in a modern democracy? Not for one moment. Until I can be satisfied that this new legislation will deal not only with the problems about which hon. Members have been speaking but with the internal corruptions of Governments, I shall not be able to support it.
Column 490Secretary has in many ways produced a great improvement on the present law. Unfortunately, the measure has the fatal weakness of lacking a public interest defence. If that were inserted, many of those who might have reservations about some aspects of the legislation would give it a broad welcome.
Can we manage to persuade the Home Secretary to amend the Bill in that way, or is our problem not the Home Secretary but the Prime Minister? I suspect the latter to be the case, and our real problem is how to persuade her. We have tried today and on previous occasions to invoke history. The right hon. Member for Blaenau Gwent (Mr. Foot) did that today with great effectiveness.
The events of the 1930s should concern hon. Members, particularly the way in which Winston Churchill was briefed. That was a major issue which cannot be ignored. I became worried when the Home Secretary was asked about the revelation that the Cabinet in 1955 deliberately decided not to reveal the leak from the Windscale plant. The right hon. Gentleman said that he knew nothing about it. It was one of the most serious recent cases, and it showed how the Government, the Cabinet, thought that they were interpreting the national interest as their interest. When the Home Secretary studies those Cabinet papers he will probably conclude that they acted against the national and public interest.
That was the crucial point made by the right hon. Member for Old Bexley and Sidcup. We in Parliament will not accept that Cabinet, Government, national and public interest are at all times the same. We are well aware that there have been occasions, sometimes for good and sometimes for bad intentions, when democratic Governments, in this and other countries, have taken decisions against the national and public interest. The interests cannot be equated.
That is not just the view of hon. Members. It might be said that we are jealous of the Executive, that we are always on our guard, standing on our dignity and not ready to trust the Executive. We are speaking also of Law Lords, and in many distinguished judgments they have taken the same view. Consider, for example, Chandler v. DPP in 1964, when Lord Reid said :
"Who, then, is to determine what is and what is not prejudicial to the interests of the state? The question more frequently arises as to what is or is not in the public interest. I do not subscribe to the view that the Government or a Minister must always, or even as a general rule, have the last word about that."
The Home Secretary will say that there is in the Bill, for the vast bulk of cases, the harm test. Because the harm test will go to a jury, they will reinterpret the right hon. Gentleman's law. When there is some other interest, the jury will try as hard as possible to inject some public interest, but will be advised by the judge not to take account of the public interest. I am not a lawyer, but I believe it will be difficult for counsel to argue the case for public interest because of what will be said.
I come to that group of people who will have no chance to argue in that way --people designated under the measure--those who work in the security and intelligence services or who come in touch with those services. These are people to whom I think we owe very special attention because they will have no defence--automatically, they will have committed a criminal offence.
Here again I should like to invoke a Law Lord. After all, the judgment of Lord Griffiths in the House of Lords
Column 491on the Attorney-General v. The Observer was extremely favourable to the Government. Lord Griffiths said that he thought that it was absolutely right that there should be a rule forbidding any member or ex-member of the service to publish any material relating to the service. He was on the Government's side. But he went on : "theoretically, if a member of the service discovered that some iniquitous course of action was being pursued that was clearly detrimental to our national interest, and he was unable to persuade any senior members of his service or any member of the establishment, or the police, to do anything about it, then he should be relieved of his duty of confidence so that he could alert his fellow citizens to the impending danger".
He argued for a public interest defence.
We may dismiss the decisions of all these Law Lords, but we are going to hear more about them in another place, and there is a very real chance, in view of the extraordinary level of cross-party interest in, and concern about, this matter, that they will put this provision back into the Bill and thus improve it. That will be the real test of this House and--dare I say it?--also the real test of Conservative Members of Parliament. Are they just going to throw that as well?
I know that this is not a simple question, and I say to the Home Secretary that I understand the difficulties on the question of the security and intelligence services. The right hon. Gentleman referred to the ABC case, as it was called. He said that he had been consulted by the then Attorney- General. He said that I too had been consulted, and that is so. The Attorney-General always made it very clear that it was his decision but that he would come and ask us about what the effect would be if some of this information in a court case came into the public domain.
I do not think that I breach too many secrets when I say that initially I was against prosecution in the ABC case. However, everybody came in and persuaded me that it would be terrible not to prosecute--people in the services whom I respected said so--and I eventually relented. But one of my reasons for doing so was that I was given an absolute promise that the case would be heard in camera. However, what happened, if my memory does not serve me badly, was that they managed to argue that it should not be heard in camera. This is one of the problems, and if the Home Secretary is listening to this debate and is prepared to reconsider this case, I should like to put a suggestion to him. In a case that involves somebody designated under this Act, who is going to be granted a public interest defence, I personally would accept that that case should automatically be heard in camera. There are very great difficulties in open court in deploying the full arguments as to why one believes that it is not in the public interest for information to be put out. It is a fair point that what appears very minor information can, cumulatively, be very revealing.
We are dealing here with a very small category of people. I am not arguing that all cases should be held in camera ; I would argue that in a vast number of cases a public interest defence should be heard in open court. I am dealing simply with the small group of people designated in the Act who at the moment have no provision for appeal, no public interest defence, no rights at all--people who are subject to automatic criminal action. Such were the very people who gave Winston Churchill information all through the 1930s. All those would have been
Column 492designated under this legislation. They would automatically have been adjudged to be taking criminal action if this had been the law of the land.
I believe that that would be a possibility for the Home Secretary. The Home Secretary has used the jury ; he has gone away from ministerial designation. That, broadly, has been accepted. However, it would be possible to have a full court case, the jury making the decision, but to hold the proceedings in camera. Were that the case, some of the problems that arose in the ABC trial would be avoided. It is very important that we get this law right. The paradox of this Government is that they talk about secrecy, yet we have had more actions and court cases than almost anywhere else. We have also had more revelations of real, genuine secrets than in any other period in our history. The paradox is that we know more about GCHQ and about the security and intelligence services, including some quite damaging information, because we have not had the right law--law that would have carried sufficient confidence. So it is important that we get it right.
The Home Secretary will say that he has made some changes, that we have welcomed, and I agree. Putting MI5 on a statutory basis was a sensible decision, and I supported the legislation, but the Home Secretary cannot carry all the House. On the question of public interest defence, he certainly is not carrying the House. In the Green Paper that the Government produced, there was a certain element, in respect of public interest, suggesting that they were yet to be convinced. Some of us hoped that the Home Secretary was open-minded. My personal belief is that he is still somewhat open-minded about this. As I have said, a lot more will be heard about the matter in another place. My belief is that, if the public interest defence could be reintroduced in this Bill--the general one that we seek to put in the clause for the vast bulk of cases ; possibly this suggestion that I am making about automatically hearing in camera cases involving security and intelligence and people who are designated under the Act--it would be not only a vast improvement but a confidence-building measure in this House and among a wider public, resulting in acceptance of some aspects of a Bill which does in fact, broaden information but is stricter in areas in which many of us accept that it ought to be stricter.
It is in that spirit that I hope the Home Secretary is listening. I hope he will let us know whether designation is or is not subject to judicial review. I hope the Minister of State will agree that he did say two different things.
Dr. Owen : One thing that has certainly emerged from the earlier debate and from this debate is that we expect an amendment to come forward from the Government to make this clear beyond peradventure. I am hoping also for a further amendment to be brought forth by the Government, possibly in another place, to deal with the public interest defence. It would do the reputation of the Home Secretary a great deal of good if he were to table such an amendment. What is much more important is that it would do the Government's reputation, and that of the Prime Minister, a great deal of good--and that is something they need at the moment. They would at least be showing that they are capable, occasionally, of listening.
Mr. Churchill (Davyhulme) : The right hon. Member for Plymouth, Devonport (Dr. Owen) has rightly said that we should look to the lessons of history. This has been echoed and re-echoed by hon. and right hon. Members in all parts of the House.
While I support the broad sweep of this Bill, I think that its sweep is too broad. In their determination to silence any other would-be Peter Wright, the Government are in danger of going rather too far. The fundamental premise behind their thinking is that the Government and the Government alone are the guardians of the national interest and that, perforce, anyone breaching security can only be acting against the national interest. Of course, it is the common weakness afflicting every Government, no matter what their political complexion, to equate Government interest with the national interest when history has shown time and again that that is not so. I invite the Committee and my right hon. Friend the Home Secretary to consider a scenario in which a British Government might act against the national interest to the point that they are wittingly or unwittingly providing military assistance to a hostile power. If hon. Members considered that suggestion to be a far-fetched flight of fancy, I would not blame them, but they would be mistaken. To my certain knowledge, it has already happened. I am not referring to the period immediately before world war 2 referred to by the right hon. Member for Plymouth, Devonport and also mentioned with passion and eloquence by the right hon. Member for Blaenau Gwent (Mr. Foot). They referred to an incident in which highly classified intelligence was supplied to a certain prominent Back-Bench Member of this House. 8 pm
I am referring to information which came into my hands in January 1977, following my appointment as an Opposition spokesman on defence. That information showed that the Labour Government of the day had given approval to one of our top electronics firms, Lucas Aerospace, to enter into a contract with the Soviet Government. That contract was signed on 22 December 1976 and was for the supply of advanced electronic equipment to improve the performance of the Kuznetsov NK144 jet engine which powered the TU-144 "Concordski". The Committee may feel that that was innocent enough, but when I pointed out that that engine--extended by 12 inches and uprated 10,000 lbs of thrust, from 45,000 lbs to 55,000 lbs--also powered the Soviet Backfire nuclear strike bomber, the gravity of what was afoot becomes apparent.
Column 494Thanks to an individual in the Ministry of Defence and a senior research scientist working for Plessey, I was able to obtain confirmation of the facts and to learn that while Lucas Aerospace was to supply a digital fuel control system for the Soviet engine, Plessey was to provide a variable geometry jet nozzle. The combination of those two pieces of equipment could have significantly extended the range and radius of action of the Backfire bomber, possibly to the point that it could strike the United States from Soviet bases.
At least one of the contracts involved pushing back the frontiers of science on behalf of the Soviet military machine. The senior research scientist who contacted me from Plessey begged me to do all in my power to ensure that the contracts were cancelled because in his judgment they constituted a clear threat to the security of Britain and of our allies. I made it my highest priority to do all in my power to secure the cancellation of those orders. None the less, despite questions and debates in the House and press articles and radio interviews, it took nine months before the contracts were cancelled and the Government of the day acknowledged that a serious error of judgment had been made.
It transpired that the contracts had been approved before the Government knew that the engine that powered the civil "Concordski" also powered the military Backfire. Evidently my telephone calls to the official in the Ministry of Defence were monitored, because soon afterwards I was cautioned by the then Secretary of State for Defence not to try to communicate further with the official concerned. I have no means of knowing what, if any, disciplinary action was instituted against that official. However, I know that a prosecution of that official or the senior research scientist at Plessey under the Official Secrets Act 1911 would have been unlikely to succeed because they could have claimed under section 2(1)(a) that their disclosure of secret information to a Member of Parliament was "in the national interest".
My right hon. Friend the Secretary of State has said that there is no national interest defence in the present legislation, but he is mistaken. Section 2(1)(a) states, in effect, that a person may be guilty of a misdemeanour if he communicates specified information to any person other than the person to whom he is authorised to communicate it or to a person to whom it is
"in the interests of the State his duty to communicate". That key premise and defence existed for people connected with my grandfather's case before the war, in the Duncan Sandys case and in the case to which I have just referred. There would have been a defence before a court of law and almost certainly a prosecution would have failed.
Mr. Aitken : I hope that my hon. Friend will accept this point, which will strengthen his argument and perhaps destroy further the inaccurate argument put forward by the Home Secretary. A Select Committee of this House sat in 1938 to deal with the Official Secrets Act 1911. Part of its findings were based on the evidence of a Clerk of the House, Sir Gilbert Campion. The report states that the Committee
"could imagine circumstances in which it would, in the interests of the State, be the duty of a person having information to communicate it to an MP although he was not authorised to do so."
Column 495The example to which my hon. Friend the Member for Davyhulme (Mr. Churchill) has referred seems to have been foreseen some 30 years earlier, thus confirming the existence of a public interest defence under the 1911 Act.
In the example that I have outlined, had this Bill been on the statute book the Labour Government could undoubtedly have shown that harm was done because the disclosure resulted in the cancellation of contracts between this country and the Soviet Government worth many millions of pounds. The Lucas Aerospace contract was valued at £10 million. I do not know the value of the Plessey contract.
Mr. Baldry : If my hon. Friend wants to make that assertion, he should look at clause 2 and tell us where the Ministry of Defence or the prosecution could have shown that the case history that he has outlined would have prejudiced the capability of any part of the armed forces to carry out their task? Nowhere in clause 2 does it state that the loss of a contract comes within the context of a damaging disclosure.
Mr. Churchill : If one of the people who had been conveying information to me had been a designated person, it would have been an absolute offence under the Bill. The defendants in the case that I have outlined could no longer claim that they had communicated information to a person defined in the 1911 Act as
"to whom it is in the interest of the State his duty to communicate".
It disturbs me that under this Bill those people acting solely out of patriotism--few hon. Members would dispute the patriotism of the two individuals to whom I have referred--by imparting information about the Soviet contract could be held to be guilty of a criminal offence and liable to a two-year prison sentence. The fact that they acted in the national interest would be no defence. Is that really what my right hon. Friend and the Government have in mind? I find that quite impossible to believe.
Most worrying of all, if the Bill is passed unamended, is the damage that it will do to the privileges of the House as accepted during the past 75 years, and the rights of individuals in certain circumstances to communicate classified information to Members of Parliament without fear of prosecution, provided that they can show that the disclosure was in the interests of the state.
Mr. Terry Dicks (Hayes and Harlington) : My hon. Friend must excuse me because, unlike him, I am not an expert in these matters, but is the logic of his argument that, if the Bill had been in force before the war, the appeasers would have gone free and Vansittart would have ended up in jail?
Mr. Churchill : My hon. Friend must forgive me. I am not dealing with the period before the war--I am dealing with a specific case of which I have personal experience. The way in which that case would almost certainly have been handled under the Bill, were it to be passed unamended, gives grounds for serious concern. It is a clear deficiency in the Bill that there is no national interest defence and I ask my right hon. Friend to consider the
Column 496matter afresh in the light of the facts that I and other right hon. and hon. Members have put before the Committee today.
The Government have a responsibility to produce legislation on this vital issue that will stand the test of time and not legislation designed to slam the door on the horse that has most recently bolted from the stables. If my right hon. Friend is not minded to accept new clause 4 proposed by my hon. Friend the Member for
Aldridge-Brownhills (Mr. Shepherd), at least let him bring forward his own national interest amendment.
Mr. Archer rose--
Mr. Rooker : On a point of order, Miss Boothroyd. I apologise sincerely to you, to the House and to my right hon. and learned Friend the Member for Warley, West (Mr. Archer), but may I ask you to reflect on something while my right hon. and learned Friend makes his speech? This important and crucial debate has been going on for more than four hours. In contemplating whom to call when my right hon. and learned Friend sits down, might it be a good idea to call someone who will speak in favour of the Bill, as so far only the Home Secretary has spoken in favour of it.
Mr. Baldry rose--
The Second Deputy Chairman of Ways and Means (Miss Betty Boothroyd) : Order. I can deal with that point of order. I am not aware who is in favour or not in favour of the Bill. I call those hon. Members who rise, and I shall continue to do so.
Mr. Spearing : Further to that point of order, Miss Boothroyd. I apologise to my right hon. and learned Friend the Member for Warley, West (Mr. Archer), but the matter is of some importance. My right hon. and learned Friend who is about to speak has been a Law Officer of the Crown, a solicitor and not a barrister--[ Hon. Members :-- "He is a barrister."]--but not an Attorney-General. I can espy no one on the Treasury Bench representing the Crown. I know that the matter has been raised before, but my right hon. and learned Friend will be asking searching questions which understandably the Home Secretary is not equipped to answer. Is there some procedure whereby we can have a dilatory motion until a person equipped to answer those points can be brought to the House?
Mr. Archer : It may set my hon. Friend's mind at rest if I tell him that the searching questions that I had in mind to ask have already been asked. I hope that the Government work sufficiently effectively for the Law Officers already to know that they have been asked. As to the matter which my hon. Friend the Member for Birmingham, Perry Barr (Mr. Rooker) invited you, Miss Boothroyd, to reflect, you might reflect on it, but I hope that at least half your mind will be on the argument that I am seeking to adduce.
If the purpose of the speech by the hon. Member for Davyhulme (Mr. Churchill) was to point out that Governments do not always act in the best interests either of the public or of the nation, if there is a distinction, either
Column 497through malice or by mistake, I wholly agree with him. However, this is a serious debate and our main theme would not be enhanced if I were to enter into the dramatic details of the particular example which he gave. Whoever is in government, there is a consensus in the House that it is not the same thing to talk about the interests of Government and the interests of the nation.
I appreciate that the Second Reading debate is over, but it is worth reflecting for a moment on the background against which the debate is taking place. We are debating the circumstances in which someone may be prosecuted and punished as a criminal for revealing information. The vast majority of common law jurisdictions, and many other jurisdictions as well, have a law which imposes on Government a requirement to make that information available. Their courts debate whether Governments should be entitled to refuse information. That impressed itself on me when I was looking to see whether courts in other countries had experienced, difficulty in deciding where public interest lies. They have not. There are cases enough about the public interest, but in Australia, Canada and most common law jurisdictions, public interest cases are about when the Government may refuse a disclosure of information. The public interest provision that we are discussing is about the circumstances in which, exceptionally, someone may tell the public without being sent to prison. So we are discussing the exceptions to the duty to conceal, while they are discussing the exceptions to the duty to reveal.
It must be common ground that there have been occasions when misdeeds of those in government ought to be revealed and that it would have been wrong had they not been revealed. Unhappily, we still do not know whether Richard III murdered the princes, but if he did, and had that become public knowledge, would anyone argue that that would have been other than in the public interest? Of course it might have been damaging to the nation's armaments because the battle of Bosworth would have taken place earlier. Would not the world have been a nastier and dirtier place if Watergate had not come to light? There have been a number of interventions on whether the public interest coincides with the interests of the Government. One of the historical foundations of the privilege of the House, which Mr. Speaker claims on our behalf, was the case of Sir Thomas Haxey in 1397. Sir Thomas was a senior official in the service of Richard II, and he asked the House of Commons to discuss a remonstrance against some of the King's practices. The King obtained from the House the name of the whistle-blower, and persuaded the other place to rule that it was treason to seek to remedy anything pertaining to his person, rule, or royalty. Sir Thomas was condemned as a traitor. But the House took the view that what he had done was in the public interest, although I do not think that it used those precise words, and history has vindicated him as one of the pioneers of our constitution. Even the King decided that it was unwise to pursue a whistleblower when what he had revealed was already in the public domain, so Sir Thomas was pardoned and restored to his former position. I sometimes think that it is a pity that the present Cabinet are such bad historians.
Of course there have been Government secrets which would have been better not disclosed. Those who disclosed
Column 498them were at best misguided and at worst wicked. In the early 15th century, the House secured a promise from Henry IV not to listen to any of the leaks about proceedings in the House until the debate had finished and the House had reached a conclusion.
Of course, there have been times when the public's right to know has been invoked in the interest of nothing more edifying than a thirst for scandal or a profitable market in tittle tattle, but that is just the case for the new clauses and amendments. That is why we need some way of distinguishing between the two categories, and the Bill does not provide it. It simply says that, for certain categories of offence, the prosecution must prove that some harm resulted. It does not say--the Secretary of State did not show a clear realisation of this--that anyone shall be entitled to balance that harm against the good that might follow, however great the good. Under clause 1, there is not even a requirement that any harm should be established. The argument appears to be that, when security information is divulged, some harm is bound to follow.
It does not require the imagination of a John Le Carre to envisage circumstances in which the public benefit that follows a disclosure is out of all proportion to the harm caused. We have heard many such examples this evening. Suppose it came to the knowledge of a member of the security services that a vast installation contained chemicals, explosives or nuclear material that was unstable and capable of causing a public disaster. Could it possibly be said that the harm to the security services or defences arising from revealing that information was in any proportion to the benefits of causing that danger to be removed? When Ibsen wrote "An Enemy of the People" he clearly invited his audience to conclude that the enemy of the people was not the man trying to alert them to the danger. To invoke the harm that would follow a disclosure would be a fig leaf to cover a great obscenity.
If it is said that my example is far-fetched and that Ibsen was not introducing realism to the stage, I pose this question. If, before the Watergate disclosure, anyone had written a play using its facts as the plot, a Minister would have said that it was too far-fetched to be taken seriously. A jury that has heard the evidence--the merits of the case properly argued by both sides--and has been properly directed by the judge is eminently capable of weighing that balance. My hon. Friend the Member for Perry Barr (Mr. Rooker) said that no speeches had been made supporting the Secretary of State, and that speaks for itself. However, I had expected one argument to be made and it was the only consideration which at one point caused me to hesitate. A person who is in the dilemma that we are discussing--who is asking whether it is his duty to maintain confidentiality or expose inequity--would have to make a judgment without knowing the view that a jury might take. He may say, "I must exercise my judgment in good faith but find subsequently that I have committed a criminal offence because the jury takes a different view." He would be better protected if there were some way of resolving that issue before he made the disclosure and before a prosecution followed.
We are dealing, ex hypothesi, with officials who have exhausted the system's channels. Any further oracles would have been part of the service, part of the culture of confidentiality, would probably be drawn from the ranks of the establishment and be motivated by the same
Column 499secretive culture. My right hon. Friend the Member for Morley and Leeds, South (Mr. Rees) spoke of the "next man up", and we all know examples of the "next man up." We know what happened to Fletcher Christian after he mutinied on the Bounty. The Admiralty did not support the subordinate who took over from his superior, and we have a further fictional example in "The Caine Mutiny". The difficulty is that no sieve is provided prior to disclosure and prosecution. If the Home Secretary introduced a solution along those lines, some of us might be prepared to consider a settlement.
Mr. Archer : My hon. Friend poses a fascinating question on which one is tempted to speculate. Sir Frank Cooper was one of the signatories to the letter we have been debating. I am not sure that what one does in concrete circumstances and when standing aside and writing to The Times are the same. I am not sure that I would recommend three wise Privy Councillors. I am inviting the Secretary of State to consider an alternative solution if he thinks that it might be preferable to some of those that we are debating.
Mr. Spearing : Would not the dilemma facing any of the gentlemen mentioned by my hon. Friend the Member for Linlithgow (Mr. Dalyell) be greater because the document leaked in the Ponting case questioned the validity of the joint position that had been reached by all parts of government? Surely that would have put them, according to the principle of "next man up", in an impossible position?