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Column 511doubts about the jury system, which can work in a quirky way, particularly in criminal and City financial fraud cases. We tend to think, more and more, that there should be a panel of professional assesors in such cases rather than a jury, which cannot understand the intricacies of financial fraud and chicanery.
In cases involving official secrets, there is no substitute for the ideal sacred British tradition of the jury assessing the aspects and values and deciding the relevant prosecution. There is a need to build into the Bill an amendment on public interest defence. My right hon. Friend the Home Secretary is nodding, but perhaps not at that suggestion. Will he or the Minister, when they have the opportunity, return to the points made by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd)? The Home Secretary has not yet properly dealt with the difficulties in clause 3(3), which constricts the automatic confidential or contents criteria. It is a worrying subsection, upon which we need more guidance.
We are talking against a background of difficulties that have occurred in recent years. People have used phrases such as elective dictatorship--I do not, but a previous Lord Chancellor used it about another Administration. We are talking about the background of a political and constitutional system in which Governments with a minority of the popular vote can more or less do what they will--aided, abetted and supplemented, often with beneficial effects, by the tradition of the strong party Whip. In this country, Governments can operate without a true majority and--unlike the system in some other European countries--with no constitutional court to restrain them or say that they have gone beyond the reasonable bounds of what they were publicly elected to do.
In most other countries, one party cannot govern without a majority of more than 50 per cent. If there are no restraints inside the Chamber or, to a lesser extent, in the Upper House--where it does not matter so much and where their Lordships do their best in difficult circumstances--what are we here for? How can we uphold the public interest and serve the national interest in an on-going sense, rather than simply worrying about what the party manifesto, the Cabinet or No. 10, say? This occasion is a classic example of the traditional ritual of the strong whipping system, with just a handful of Members--mainly Conservative Members--introducing new clauses and amendments. I mean no offence to Opposition Members when I say that. If that is the direction in which our politics is going in this country, God help us in this House of Commons. We must realise that we have a sacred duty not always to accept partisanship and say that we will do what the party Whips ask us to do, day in and day out. I do that most of the time, like all hon. Members, both Labour Members and Members from smaller parties, albeit from a problematical political and constitutional position.
If that is the case--as my hon. Friend the Member for
Aldridge-Brownhills (Mr. Shepherd) implied, although he was dealing with specific points concerning the amendments and new clauses--we might as well give up, because we are not serving the public, and they know it.
Column 512People outside who follow these matters, although they are complicated issues even for parliamentarians, overwhelmingly want a public interest defence.
I do not necessarily agree with the interesting idea of the right hon. Member for Plymouth, Devonport (Dr. Owen). As I understand it, he said that all the officially listed category of persons should be heard in camera if they were prosecuted, rather than simply a significant minority of those designated persons. If it were a significant minority, I might consider that an interesting and constructive proposal, for the reason that the right hon. Gentleman gave--to try to help the Executive--but it would be too sweeping to go beyond that.
Once again--I do not wish to stray out of order in saying this--we come overwhelmingly back to the idea of a Select Committee of Privy Councillors in this House to oversee these matters. That Committee would be very much reinforced by having the proper kind of public interest adjustment which we want to see and which is contained in these amendments.
I was touched when the right hon. Member for Morley and Leeds, South (Mr. Rees) spoke in romantic and idealistic terms about the need for amendments to Bills, either on the Floor of the House or in Committee. We live in an age of cynical sophistication. The right hon. Gentleman must realise that we no longer amend Bills in Standing Committee, nor do we normally amend Bills on the Floor of the House. That is out of date and old-fashioned. Small technical amendments might be accepted and, occasionally, amendments on behalf of a trade association or an outside interest group in respect of a legitimate little matter. Does not the right hon. Gentleman understand that this is a new era? I wish that he would adjust his thinking to that new era.
Mr. Dykes : I agree, but I shall not reply to that comment save to say that I noticed that, after the war, turnouts were at least 80 per cent. and that nowadays they are down to 72 per cent. Perhaps there is something in what the hon. Gentleman says.
Mr. Aitken : My hon. Friend has committed a gross discourtesy to the Home Secretary in suggesting that no amendments are now allowed in debates. I wish to put the record straight. There will be one amendment. I should like my hon. Friend to take account of the fact that all amendments are equal, but one word from the Home Secretary will make one amendment more equal than others.
Mr. Dykes : I am mortified by the sin that I have just committed. If I had not been interrupted, I would have said that this was a marvellous opportunity for my right hon. Friend to say that that is not the case and that one of the most important amendments that has ever been proposed in respect of such legislation at this crucial stage is acceptable, or, at least, that he and his colleagues--I pay genuine tribute to their work on this legislation--will consider returning to the House with suitable proposals.
Column 513I wish to reiterate a point to which one or two other Members have alluded, especially my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath), if I understood him correctly. If there is a public interest defence in the legislation, we positively enhance the previous stage, involving all the other internal Civil Service procedures, to put the matter right before it reaches this stage. The senior civil servants above the aggrieved official, up to the head of the Civil Service will have a chance to put matters right in the knowledge that, if they do not, there is a second line of defence for the nation as a whole. In discussion with his seniors, the aggrieved civil servant--in whatever Department he is working, be it security, defence or any other Department of State ; it must be remembered that we are dealing with other than matters coming within section 1 of the Official Secrets Act--will know that the channels available to him are more legitimate and valid because the seniors above him must get it right. If they do not get it right, he will have the ability to act--genuinely and legitimately, not irresponsibly, superficially, frivolously, with malice or simply because he disagrees with policy. If he feels there has been wrongdoing, improper conduct or corruption in a Department of State, he will have a second line of defence--or perhaps it could be called a second line of attack-- represented by the genuine national interest. That would save this country from going downhill and into dubious areas about which, I believe, journalists are already writing.
Mr. Rooker : This has been a long and interesting debate, and although I have listened to all of it, save when I left the Chamber to make two telephone calls, I have not risen to speak until now because I was anxious to hear what senior colleagues on both sides had to say.
The argument has been one-sided, as I pointed out in an intervention. Knowing the way in which the Government operate, I have every reason to believe that the Bill will be timetabled. We shall probably rue the day-- the remarks of my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees) spur me into making this point--that when, a few years ago, we had a Government in a minority situation, they did not legislate on this subject. Such legislation, if passed 10 years ago under such circumstances, would probably have stood the test of time. I fear that legislation of this type, passed by the present Administration with their overwhelming majority, will not stand the test of time.
It is clear that the Government do not want public interest included in the Bill. The same can be said of other amendments that hon. Members have suggested but which the Home Secretary will undoubtedly turn down. I urge the right hon. Gentleman to remember that his party, with its present majority, will not be in office for ever. If we had a free vote, major amendments to the Bill would be made.
I am not suggesting that the official secrets legislation passed earlier this century has stood the test of time. It needs amending, and it will not be an easy exercise. If we are obliged to discuss the Bill under the guillotine, we shall end up having fewer hours in which to debate the measure than had we begun in Committee upstairs in the first place. Those who fall foul of the legislation will be bound to feel that the Bill was not adequately discussed.
Column 514Although we shall not have an opportunity to vote on all the proposed amendments and new clauses, I prefer new clause 4 to new clause 1, but that is only a choice between options. As the Official Report of our debates is read widely, including by those in the other place, it is worth recording that certain issues are regarded as House of Commons matters while others are not. Legislation is separate from that, by which I mean that the rules of the House, allowances, matters of access to the Palace of Westminster and so on are dealt with, by and large, without the Whips being on. There ought to be certain classifications of legislation--certainly constitutional legislation, however it is defined-- where different ground rules apply, if only to protect this House in future from having to keep coming back and looking at what are essentially long- term constitutional matters. In other words, the people ought not to be messed around every time a Parliament or a Government changes. By and large, the overwhelming majority of the House should accept that such a piece of legislation should be able to stand the test of time--to survive a decade or more.
That can be done only if future Parliaments know that the legislation was dealt with not by the dead hand of the Whips, not by the sledgehammer, not by the guillotine, but with a degree of free and open debate that we would not normally seek in the case of the ordinary run of legislation-- legislation about which we might complain but in respect of whose passage I accept that the Government have to apply the rules of the House in getting their programme through. However, this Bill, above all others--certainly any that have been dealt within this Session of Parliament--ought to be treated differently. It would be all very well to make the point that the Committee stage is being taken on the Floor of the House, if we knew that there was going to be a genuinely free debate, if we knew that Ministers would treat the debate seriously--and I sat through the whole debate last Wednesday.
The Home Secretary spoke a few hours ago. Since he spoke so early, he could not answer the debate. His early intervention was useful to the House, but at no time did he seek to address the substance and the detail of the group of amendments that is before the House, so, clearly, that will have to be done by another Minister, and that will obviously cause other Members to contribute.
If we knew that there was going to be a free and open debate, if the Government had a totally open mind and showed that they were prepared to listen to points of great importance to our unwritten constitution-- theoretically it may be unwritten, but in fact it is written down in statutes like this for the servants of the Crown to operate--that would be a different matter.
In making this point, I end on the same note as the hon. Member for Harrow East (Mr. Dykes). If the Government were willing to countenance amendments of substance--clearly, provision for a public interest debate is a matter of substance ; there is no argument about that--I am pretty sure that there would be less likelihood that servants of the Crown taking that gamble would feel upon them the pressures that they will undoubtedly feel if this legislation gets on the statute book.
Will the jury agree with me? I do not want people to be put in that position--and I think we have discussed these things a little too glibly. A public interest provision would simply be a long stop--perhaps a threat to the internal
Column 515workings of the Department to make sure that it listened to its employees and tried to see if there were a legitimate and reasonable redress.
There does not seem to be that degree of openness on the part of the Minister, and I think that we are all--not only right hon. and hon. Members on both sides but the people of this country--losers because of the way this legislation is being handled.
Mr. Whitney : Given the lateness of the hour, I will endeavour to be brief. I agree with the hon. Member for Birmingham, Perry Bar (Mr. Rooker) that this Bill is crucially important to the people of this country. It is right that I should emphasise that the area of debate centres on a very small number of public servants. The need to correct the Official Secrets Act 1911 has been recognised for more than 20 years, but we understood that that would be a very difficult task. We are all aware that the last Labour Government could not perform that task and the right hon. Member for Morley and Leeds, South (Mr. Rees) explained why.
We must understand how far the Government have come. The concerns that have been expressed tonight from both sides of the Committee centre on a narrow class of people within the ring fence. We are talking about a few thousand out of a total of nearly a million people who would currently be covered by the official secrets legislation.
My right hon. Friend the Member for Castle Point (Sir B. Braine), my hon. Friend the Member for Havant (Sir I. Lloyd) and others focused on cases like that of Captain Scott and the tanks and on industrial health and safety matters. There would be great benefits in those areas. We shall have swept away the all-embracing impact of the Official Secrets Act 1911 which is so unsatisfactory. Those activities which are not covered would be outside the ring fence and open to the test of harm. Hon. Members on both sides of the Committee should welcome that.
The right hon. Member for Plymouth, Devonport (Dr. Owen) asked in Committee last week what was happening to this House. I want to know what is happening to this House because we appear to be ready to throw away the very important balance in our concerns about public interest. There is a very difficult balance to strike in public interest matters. We all recognise that there is a fine balance between the public and national interest on the one hand, and the interests of public servants and their civic rights on the other. It all boils down to a very narrow category of civil servants to which the ring fence proposals apply.
Perhaps the right hon. Member for Devonport and his right hon. and hon. Friends can tell us what happened to the House when the Labour party was in government. The Labour Government recognised the crucial need for a degree of secrecy within the public service. For example, there was secrecy in the Chevaline episode to which reference has been made today. The development of Chevaline was kept from the House of Commons for reasons which will be known to members of the Labour Cabinet of the time. It must also have been known to dozens and possibly hundreds of public servants. I wonder what those right hon. and hon. Members who kept the details from the House would have said if a civil servant had decided that Chevaline was not in the public interest
Column 516and that he would reveal it. Right hon. and hon. Members must look into their hearts to understand the pressures of Government. The examples that we have heard today demonstrate the validity of this Government's position. Right hon. and hon. Members have had to refer to absurd examples which do not bear a moment's examination. The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) is prepared to believe that a chain of civil servants would be corrupt and act in collusion. Of course, that is unacceptable and untrue. He can demonstrate his case only by citing examples which do not stand up. The old cliche that hard cases make bad law has never been more clearly shown than by the examples today.
We heard much about the Sir Winston Churchill and Duncan Sandys episodes before the war. I was not privileged to hear the speech from the right hon. Member for Blaenau Gwent (Mr. Foot), but I know that he referred to those matters, as did other hon. Members. If those hon. Members considered their examples, they would realise that the Churchill and Sandys episodes are of a different order of magnitude from what we are considering now. With regard to the public interest, we hope through this Bill to make Government work better. In the 1930s we had a massive national debate. It was not a matter of a Ponting, a Peter Wright or a Cathy Massiter leaking information in a brown paper envelope to one individual. It was a major debate and everyone knew what was happening. Sir Winston Churchill was half within the realm of secrecy. He was a member of the Air Defence Council. Because of the lateness of the hour, I shall not read it out, but Martin Gilbert's book contains a list of 20 or 30 senior Ministers and officials who were well known to be in contact with Winston Churchill. I do not suggest that we should legislate for such a difficult situation.
Mr. Richard Shepherd : I am not sure what my hon. Friend is suggesting. Is he saying that if that were to happen today, Winston Churchill's leakers would or would not be prosecuted? Is he suggesting that it would or would not be appropriate that such people should be prosecuted today? Is the law to be based on some special public debate? If he believes that such circumstances occurred in the 1930s, how can he believe that the same could not happen tomorrow or another year?
Mr. Whitney : I was saying that it is quite inapposite to believe that we can construct a law to cover a massive national debate. If we seek to do that we shall write a Ponting charter. Nearly every Opposition Member has agreed that such conduct was contemptible and nearly everyone would agree that Government could not function if we had such a charter. I hope that my hon. Friend will accept that we have a problem, but the present is one thing and the problem of another national debate is another.
No one can seriously suggest that the substance of the debate in the 1930s was not clear. Churchill's attack on the Government of the day benefited from the hard information that he had, but the major debate about what was going on in Germany, what the Government were doing and what the Labour party was doing was a matter of public debate so the national interest was not so much in jeopardy. Therefore, we cannot use the 1930s affair to bring into law something that is not in the law of other
Column 517European countries. I commend to right hon. and hon. Members the letter in The Times today. In Switzerland, France and Germany the concept of a public interest debate in such a narrow area is unheard of and does not exist.
Sir Bernard Braine : My hon. Friend addressed a question in my speech, namely that if a foreign Government, albeit a friendly Government, provide the British Government with information which is then leaked because it is thought by the leaker to be detrimental to the best interest of the safety and health of the people of this country, under the Bill there would be no public interest defence.
Mr. Whitney : My right hon. Friend has just resumed his place and I had addressed that point earlier. As the person concerned was outside the ring fence, the harm test would apply. Under the Bill, the case that my right hon. Friend was proposing, would be a great deal more advanced, furthered and better off than it is now.
Mr. Whitney : I said clearly to my right hon. Friend that the harm test does apply because the people he is talking about are outside the ring fence. Therefore, the Bill provides a major advance in the direction in which my right hon. Friend would urge us to go. As the House knows, I am a former civil servant who, with hundreds of thousands of my former colleagues, gave loyal service to Governments of both complexions. If we introduce a leakers' charter into this narrow sector, we shall do much harm not only to the machinery of Government--to the responsibility and loyalty between Ministers and their nearest civil servants--but to the Civil Service. The affairs of Mr. Ponting and the performance of people such as him do much harm to the morale of public servants, the majority of whom will welcome the clarification and improvement in their status that the Bill offers.
Mr. Andrew Rowe (Mid-Kent) : I rise with some diffidence because almost every hon. Member who has spoken in the debate knows more about the subject than I do. I should like my right hon. Friend the Home Secretary to answer three questions, the answers to which may be known by everyone else.
First, is my right hon. Friend sure that people will be able to have their case heard by a jury? I am anxious that, because of the wording of some of the clauses, much pressure will be put on them to plead guilty. If that were to happen, their opportunity to present a defence would disappear. If some form of public interest defence were available, that danger would not exist.
Secondly, I hope that I have understood incorrectly, but it is not clear whether it is valid to say that while harm has been done, greater good has resulted. Is that part of the definition of "harm" being done? Many hon. Members have said that that is not so and that one may not lay good against the harm that one is alleged to have done. Again, the argument for some form of public interest defence is overwhelming.
Column 518Thirdly, how likely is it that it will be made impossible to mount a defence because the material needed to do so will be secret? This relates to the point made by the right hon. Member for Plymouth, Devonport (Dr. Owen).
I do not share some hon. Members' gloom about the closing of channels of communication. Whatever any Government wish to do, the growing cheapness and accessibility of international communications will make monkeys of most Governments over a wide range of matters. I rather welcome that because I believe that, in common with some other countries, we are ridiculously secret. Much better decisions would be made by Government if they were in the habit of consulting widely and early rather than, as so often happens, keeping opinions to their chests and extensively narrowing the amount of consultation. The right hon. Member for Morley and Leeds, South (Mr. Rees) mentioned the classification of documents. As an administrative device, the suggestion that documents classified below a certain level should, ipso facto, be regarded as not harmful is sensible. The danger is that classifications become ever more restrictive. Embarrassment to Ministers, in particular, is a potent source of wrongdoing. Many Ministers-- consciously or unconsciously--connive at the ever-growing number of documents classified as secret or top secret. That, too, would need to be looked into.
Mr. Corbett : A number of right hon. and hon. Members have said that this has been a remarkable debate, and it has. I am glad that the Home Secretary has been here to listen, and I am not being snide in saying that. I take the point that has echoed around the Chamber since the debate began just after 4 pm that this has been one of those all-too-rare occasions when the voice and will of the House of Commons have been expressed irrespective of party. I am trying to avoid treading in narrow party political trenches. The Home Secretary will be aware of the weight of shared opinion that has come from his right hon. and hon. Friends, which has been reflected by Opposition Members of various parties.
Mr. Winnick : I am grateful to my hon. Friend for giving way, as he has just started his speech. He referred to the debate. Does he agree that there has literally not been a single contribution since the debate began at about 4.15 pm that has tried to prolong the debate? Every point has been relevant and that is all the more reason why there should not be a guillotine.
Mr. Corbett : I accept absolutely what my hon. Friend has said, which reflects what a number of us have been saying to the Government. The Bill is so important that we require proper time to discuss it. There is not a shred of evidence that any hon. Member who has spoken today or in the first day's debate last week has been seeking to spin out time.
Mr. Maclennan : I have heard from a number of hon. Members repeated references to the possibility of a guillotine being introduced. As I am not privy to the usual channels, would the hon. Gentleman care to share his intelligence about the Government's intentions on the matter, if he has any?
Column 519The right hon. Member for Old Bexley and Sidcup (Mr. Heath) put the nub of the debate in a couple of sentences to the Home Secretary and his colleagues. He asked, broadly, whether the Government accepted that there was a proper difference between the national interest and the interest of the Government of the day. That is the point on which the whole argument about public interest turns. It has been suggested by some of the right hon. Gentleman's hon. Friends that although no specific public interest defence is written into the Bill, that defence will somehow come up in any event and that, in the nature of court proceedings, it will be one of the factors open to the defence. Some of us are not persuaded of that, but the Home Secretary will, no doubt, try to persuade us. If the Government argue that, by implication, a public interest defence will be arrived at in trials, why not write that into the Bill? What will have been lost? The Home Secretary has said that it is in the Bill. I shall be delighted if he will tell me about it.
In the Local Government and Housing Bill, which was published yesterday, the Government have not just written such a provision on the face of the Bill, but have written it heavily in it. Clause 5 provides for the appointment by local authorities of what it calls "the monitoring officer". The officer's duty is to scrutinise any "proposal, decision or omission" or any contravention of
"any enactment or rule of law or of any code of practice" or any "maladministration or injustice" that is happening in that local authority's area. Indeed, it goes beyond the bounds of that local authority, whose representatives can serve on bodies such as police committees, local fisheries committees--we all know what nuisance they get up to--national park committees and any sub-committees of the bodies of the appointing council.
If that provision--
It being Ten o'clock, The Chairman-- left the Chair to report progress and ask leave to sit again.
Committee report Progress.
That, at this day's sitting, the Official Secrets Bill may be proceeded with, though opposed, until any hour.-- [Mr. Kenneth Carlisle.]
Official Secrets Bill
Again considered in Committee.
Question again proposed, That the amendment be made.
Mr. Corbett : I shall not labour my point, except to say that if it is important--as the Government seem to feel it is--to write into a local government Bill the role of an officer to look after the public interest, how much more important it is to provide for the public interest in the Official Secrets Bill.
Throughout the debate we have had exchanges about the matter of harm, with which the public interest defence is linked. The Government's case is that harm is caused purely by disclosure, and that it does not matter whether it is a little harm or a great deal of harm. That is what the Government have asserted. The Home Secretary started this argument during our debate on 22 July, when he said :
Column 520"Our central objective is to narrow the law so it applies only to disclosures without authority of official information which"-- these are the words of which I wish to remind the Home Secretary-- "is likely to give rise to unacceptable degree of harm to the public interest."--[ Official Report, 22 July 1988 ; Vol. 137, c. 1413.]
Those were the Home Secretary's words, and he is not a man to use words carelessly. On that occasion he acknowledged that there were different degrees of harm. If there is an unacceptable degree of harm it follows in logic that there must be acceptable degrees of harm. As my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees) reminded us, that is what the Franks committee said. One of the major points in its report was that the Official Secrets Act should come into force only where there was serious harm or serious injury. The Home Secretary took us on to that ground, and it must have crossed his mind that if he had acknowledged the two principles in the Bill--that the degree of harm was measurable and that it had to be measured in relation to the public interest--we should not have had to spend all these hours on the amendment. If he told us that he is now willing to think again, on the basis of what has been argued so forcefully and eloquently by right hon. and hon. Members on both sides of the House, most of our differences over the Bill--though not all, by any means--could be put on one side and we should make much easier progress.
I do not want to waste the time of the House, but the right hon. Member for Castle Point (Sir B. Braine) raised the issue of public health and safety. Unless the Home Secretary can give us an assurance that under no circumstances will anyone who reveals anything touching on public safety and health be caught by the Bill we shall be in trouble.
If the Secretary of State will bear with me for a minute I will ask him a question, although I suspect that he will give me a different answer from the one I want. Many hon. Members have rightly mentioned the honest and loyal civil servants who know that suspected crime, fraud, abuse of authority, neglect of public duty or threat to public safety has been going on. That is what has made this debate so important.
But the Government are saying "Mum's the word". They say, "Crawl up this route. Talk to the next man up the ladder and hope to the heavens that he will do something about it."
The right hon. Member for Old Bexley and Sidcup took us through two scenarios where, for the most understandable reasons, there would be occasions where that would not happen. I find that notion deeply offensive to our public servants whether they are in security or intelligence, or merely pushing a pen in Whitehall.
It needs to be said that we are dealing with the morals and standards of public service. We have a right to expect--and we have had it by and large over the years from those who serve the public and those whom we employ on our behalf--that they should stand guardians of the public interest against the all-embracing powers of the Executive.
There is a fundamental difference between us on this matter. The right hon. Member for Old Bexley and Sidcup also referred to it. The question is not simply about where suspected wrongdoing is discovered. Let us accept that in nine cases out of 10 it is put right and that is properly the end of the argument. But as the right hon. Member said,
Column 521there are circumstances where that wrongdoing is so wicked and against the public interest that the public have a right to know what was done, that it is being put right and that the Government of the day, of whatever colour, will take steps to see that it never happens again.
I want to put to the Minister a case that has already been referred to in our debate. We now know, from the release of official papers, rather than from the work of a whistleblower, that in 1957 following an escape of strontium 90 from Windscale, as it was then known, the then Conservative Government organised a massive cover-up. The accident contaminated milk from 800 farms. That case occurred even before the notorious fire at the plant, where the truth was also bent.
Secret papers were released on 1 January this year. They reveal that no information about that Windscale fallout was released until 18 months afterwards and details were not even given by the Government to the National Radiological Protection Board. The House will remember that in the context of the Chernobyl fallout. Indeed, the Medical Research Council helped to mislead people about the true extent of the danger by relaxing its standards for safe consumption of the radio-nuclide, so making the contamination appear innocuous. In the face of what we now know to be a
Government-organised cover-up, was it or was it not in the public interest at the time for those facts to be made freely available? Secondly, should such an incident happen again, with a similar cover-up, is it not the case that under the Bill a civil servant who revealed that cover-up would run the risk of prosecution? Perhaps the Home Secretary will be able to tell the House.
There should not be retribution but reward in a democracy. By that I mean public thanks for civil servants and others who speak up on behalf of the people whom hon. Members represent against wrongdoing, neglect of public duty, fraud, abuse of authority, or crime. Illegal acts--yes, even by members of the security and intelligence services--cannot and should not be overlooked in a democracy. It comes down to this : no person in a democracy should be placed above the law.
Mr. Hind : I am grateful to the Committee for the opportunity to speak, as some hon. Members have sat in the Chamber for five and a half hours wishing to take part in the debate. I echo the points that have already been made. It has been an important debate on one of the most important issues that we shall decide in this Parliament. I support the major thrust of the Bill. There are several weaknesses in the amendments. Much of what was caught by section 2 of the original legislation will not be covered by the criminal law. A typical example is the White Paper on the National Health Service. That document was leaked to the hon. Member for Livingstone (Mr. Cook). It will not be caught by the Official Secrets Bill. The hon. Member for Birmingham, Erdington (Mr. Corbett) referred to the Windscale leak. Provided that that was not a military establishment, and I understand that it was not, it would also probably not be caught by the Bill.
Many hon. Members have ignored the pillar of the Bill, which is the harm test. The prosecution must prove that harm has come from disclosure. It is a defence for a Government official who made a disclosure to show that it caused no harm to the public interest. He can also argue in court that the result of his disclosure was beneficial and
Column 522that, therefore, there was no harm. Those points have been ignored by many hon. Members. There is nothing in the Bill to prevent a Member of Parliament receiving a disclosure other than from somebody who is notified, provided that the notification of that disclosure is used responsibly. That factor, too, has been forgotten. It has been argued that disclosure to a Member of Parliament will be harmful. Hon. Members have referred to one or two examples. First, Captain Scott revealed the state of British armaments and the weakness of British tanks. That was a typical example, in which there was no harm in disclosure. Secondly, I refer to the informaton that Sir Winston Churchill received before the last war. Where was the harm in that disclosure? There was none. Civil servants would have had the defence that is laid down in the Bill.
Much of what has been said about the Bill is not correct. Hon. Members are not looking carefully at the small print in the Bill. They do not realise that the extent of its protection is far greater than many of the Bill's opponents have given it credit for. 10.15 pm
There are fundamental flaws in new clause 1 and new clause 4. Credit is not being given for the fact that the harm test goes much further than a superficial examination reveals The two new clauses provide for a subjective test. Arguments have been put forward against the Obscene Publications Act where there is a subjective test.
In the prosecution of "Last Exit to Brooklyn", there was a conviction in one area and a acquittal in another. A jury in one area decided on a conviction in regard to "Lady Chatterley's Lover", while there was an acquittal by another jury. According to the new clauses, a jury would decide on the public interest. A jury in Manchester and a jury at the Old Bailey might disagree about the public interest ; a jury in Leeds and a jury in Edinburgh might also disagree. Hon. Members should imagine being a judge directing a jury ; they would have to decide what the public interest was. If hon. Members had to design a directive and a test they might not think it easy. The second argument is more important. The test in new clause 4 is the public interest. What is the public interest there? Under new clause 4 it is what the discloser decides that it will be. Subsection (1) says :
"It shall be a defence for a person charged with an offence under this Act to prove that the disclosure or retention of the information, document or other article was in the public interest insofar as he had reasonable cause to believe that it indicated the existence of crime, fraud, abuse of authority, neglect in the performance of official duty or other misconduct."
The public interest decision is taken by the person making the disclosure. He has to decide whether something is worthy of disclosure. If he is wrong, untold harm will be done to the public interest purely and simply on the subjective judgement of that individual. A jury will consider not just the harm but the overall position. The jury will consider whether the person had reasonable cause to believe, rightly or wrongly, that disclosure should have been made. As a barrister with much experience, I urge the Committee to consider whether anybody would be convicted under new clause 1 or new clause 4.
The difference between the Government's proposals and new clauses 1 and 4 is that the Government's proposals take into account the damage and the harm to the national interest. Neither of the new clauses does so.
Column 523All that they do is to consider the individual making the disclosure. Through the establishment code and other provisions in the Bill, there are plenty of ways in which someone who feels that he has information to disclose, such as Captain Scott or the civil servant who briefed Churchill, can get that information over without falling foul of the Bill. I urge my hon. Friends to reject the amendments.
Mr. Ivan Lawrence (Burton) : Hon. Members have been talking for hours about the public interest. Of course, it is central to the law as it exists and as it will be after the Bill becomes law. That is not the same as a specific public interest defence in court where the burden is on the defendant to prove something. Those who tabled the amendments are asking for something to be done against the defendant. The defendant will have to prove his innocence under the amendments that have been tabled by hon. Members on both sides of the Committee. I am against such a specific public interest defence. Therefore, I am against the amendments and the new clauses.
There is one stark, glaring and serious problem with such a specific defence, which appears to have been missed in all the discussions that I have heard. If the defence fails and the jury says that the accused is culpable, that what he did was not in the public interest, it is too late-- the harm has been done and nothing can correct it. The secret is unjustifiably out. The agents are dead. There is no hauling back. That is what is wrong with a specific public interest defence.
By having such a defence, we will encourage the unstable person to leak. We will encourage the person who wants to make money out of his book to leak and then to claim that what he did was in the public interest. What is wrong with such a defence is that it encourages leaks and there is no going back, if the jury should say that it is an unwarranted defence, because the harm has been done.
The question is whether the arguments for such a specific defence are stronger than those against it. Is such a defence necessary? I believe not, and I hope that the Government will stay firm for the following reasons. First, in five out of the six categories of official information, the Government are providing in the Bill much better than a public interest defence. They are providing the test of harm, which the prosecution must prove and not the defence. The prosecution will not succeed if it is obviously in the public interest that the leak was necessary. The man will go free. The public interest might also prevent the Director of Public Prosecutions, or whomever makes the decision, from initiating a prosecution at all, because he will take into account the public interest explanation and may say that the prosecution is not likely to succeed. In any case, a judge might stop the trial halfway through because of insufficient evidence of harm. All those are steps for the protection of the accused, which will, for the first time, be written into our law if the Bill is passed.
The trouble with a specific public interest defence is that it presumes that the matter might go as far as the defendant, who then must explain himself and, as everybody knows, it sometimes happens that an innocent defendant is not believed. The jury may say, "We do not believe this public interest defence. We do not believe a word the man has said. We believe he has lied from beginning to end." The man will then be convicted--whereas, if the test was purely one of harm, he would never
Column 524have been charged, or, if charged, he might have been acquitted halfway through the case because of the inadequacy of the evidence. Secondly, where the accused is not a Crown servant, the prosecution must prove even more. It must prove he had good reason to know that harm would be done, which is a much harder task than under the present law.
Thirdly, and this has preoccupied the House for much of the debate, in the one in six category--the case of a member or former member of the security or intelligence services where harm need not be proved--there are other reasons for saying that a specific public interest defence is not appropriate.
Fourthly, it is simply not true to say that the honest whistleblower cannot blow the whistle without being convicted of crime. It is nonsense, because he can go to the staff counsellor without being convicted. If he does not like what the staff counsellor says, he can go to the Minister without being convicted. If he does not like what the Minister has to say, he can go to his Member of Parliament and say, "I am bound by the Official Secrets Act"-- [Interruption.] It is no use shouting. If hon. Gentlemen listen they may hear what I am attempting to say.
The whistleblower can go to his Member of Parliament and say, "I cannot tell you precisely what is wrong, but I can tell you that I am appalled at some crime, some dishonesty, some fraud, which is being perpetrated in my department." And the Member of Parliament, exercising his right in that capacity, will knock on the Prime Minister's door--if it is a Member of the Opposition and he is terrified of doing so, he can knock on the Home Secretary's door or the Foreign Secretary's door or any one of those doors in the corridor--and the matter will be examined. That is true under any Government, and authority will be given to the whistleblower to explain precisely what he is complaining about without any question of prosecution. That is how the law operates and how the law would operate after this Bill became law-- [Interruption.] I know that my hon. Friends are in a good and merry mood at 25 minutes past 10, but it does not alter the fact that the whistleblower has a number of avenues short of going to the Sun or the Daily Mirror and saying "I have a load of secrets ; how much are you prepared to pay for them?"
Security Service people are not ordinary citizens whom we are aflicting with some terrible deprivation of their liberty. When they are at work they are very special people and they know that they are deprived of the right to speak freely on security matters when they volunteer for their job, go to work for the state and take money and a pension. The public have a right to expect that those who are paid to protect the nation's secrets do just that. They know what they are about. They are not afflicted and they are certainly not afflicted when they are not betraying the country's secrets.
If a public interest defence were given to them we might have more of a slightly unstable or slightly dangerous people of the character of Peter Wright, whom hon. Members throughout the whole of the "Spycatcher" matter castigated as being a less than favourable person, even though they supported the case against the Government. For all we know the secret service may have a lot of people like that. We have certainly heard in our debates about a number of people who want to sell for money the secrets that they have learnt in the service. If we