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Column 525

provide the public interest defence we are telling those people that they can always contend that what they did was done in the public interest.

Lastly, if we do not give a public interest defence to five of the six categories where the prosecution have to prove harm, we cannot give it to this category.

There are some who say, quite fairly, as did my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath), that there is always the possibility that a Government will confuse what is in their interest with what is in the public interest--of course that never happened under the regime of my right hon. Friend--and because a Government cannot decide between what is in the public interest and what is in their interest, the conclusion is that they will prosecute someone who ought not to be prosecuted. That is the logical conclusion.

Ultimately, we must strike a balance and decide where the public interest lies. Is it more in the public interest to risk encouraging the misguided leaker, whose defence is that he is acting in the public interest, or to trust the Government--whatever their colour--the staff counsellor, the Minister, the Prime Minister, the Member of Parliament concerned, or the Law Officers, who are brought in at an early stage, not to hide an offence?

In sophisticated democracies, most would prefer to trust the Government, backed as they are by civil servants of undoubted integrity who would know nearly everything that was going on. That is the case against the public interest defence.

10.30 pm

Mr. Hurd : It would be courteous if I tried to answer some, if not all, the points made during the long debate which has gone to the heart of necessary discussion of the Bill.

It was perfectly natural that critics of the Bill and enthusiasts for the amendments to it should have taken up most of the time, although there has been a healthy redress of the balance during the past hour or so. I have even caught a glimpse of my right hon. Friend the Member for Chingford (Mr. Tebbit), who I know thinks we have gone dangerously far in a liberal direction.

The hon. Member for Caithness and Sutherland (Mr. Maclennan) spoke to his new clause after I had spoken ; he will forgive me if I do not go into it in great detail. I criticise it on the grounds that it would leave it to the courts to decide what was in the public interest, without guidance from Parliament, and because the courts would decide cases not necessarily on the facts but on the defendant's reasonable belief that he was acting in the public interest at the time of the disclosure. He might admit that he had seriously harmed the interests protected by the Bill ; he might even admit afterwards that he had wrongly interpreted the public interest--but he would still avoid being convicted of an offence and paying the penalty for his damaging disclosure.

I missed the speech of my right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour), but was given some account of it. I am grateful for what he said in praise of the Bill. However, I do not accept that its effect is too narrow. Of course we want to make it effectively cover the areas in which information needs to be protected. Civil servants in the Ministry of Agriculture or the Department of Health now live with the knowledge that section 2 governs the confidential information with


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which they deal. It would be remarkable if this Bill covered their work. The fact that it does not is a remarkable change.

In the Ministry of Defence and the Foreign Office, the effect is different. Civil servants in those Departments will have to get used to the idea of tests of harm. The blanket protection of the law for the confidential documents that they handle will be removed--a considerable, but different change. So much of the argument has focused on clause 1, dealing with members or former members of the intelligence and security services who are notified, that hon. Members have tended to widen a necessarily restrictive arrangement as if it covered all civil servants. That is far from true.

The right hon. Member for Morley and Leeds, South (Mr. Rees) always speaks with vivid recollection of the responsibilities of his former office and of the balances that must be struck. He took us through what he called the majestic language of the Franks report, to which he put his name. I cannot refrain from reminding him that that means he put his name to the passage in it that dealt with this very matter. Speaking on a different structure, Lord Franks said : "The prosecution should have to satisfy the court that the information fell within a category, and that it was so classified, but the court should not be concerned with the effect of the disclosure on the interests of the nation."

The idea that the Franks report can be prayed in aid of a public interest amendment is wrong.

My hon. Friend the Member for Havant (Sir I. Lloyd) concentrated on an anecdote that clearly impressed and moved the House. I hope that I can reassure him, although I do not know all the historical detail. On the basis of what he said, I can tell him that Captain Scott would have had a far better defence under our Bill than he would have had under the existing legislation. Any prosecution would have to prove that the disclosure to his father was likely to prejudice or damage the capability of the armed forces. That would be the relevant test. Of course, it could not be met in the circumstances described by my hon. Friend. Furthermore, Captain Scott would have a defence that, at the time of the alleged event, he did not know and had no reasonable cause to believe that his disclosure would have a damaging effect. Under the existing law, therefore, he stood in jeopardy, but he would not stand in jeopardy under the provisions of the Bill.

I agree with the basic point made by my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath) that the Government should not be the arbiter in these matters. That is why the Bill is constructed as it is. It asks Parliament to lay down certain specific tests. It removes the need for ministerial certificates which have held up the field for so long, and it puts the jury in control, so Parliament and the jury are at the centre of the scene.

My right hon. Friend referred to the time when I worked for him at No. 10, and it is certainly true that I learned what I know and gained many of my impressions of these matters at his knee. He will not take offence if I say that I observed at his knee a remarkably rigorous attitude in these matters. If someone had come forward in those days with a proposition that the House should be asked to pass a Bill on this matter, with no ministerial certificates and no reliance on classification of documents, and which went considerably further than the structure in the Franks report and put a great reliance on juries, he would have received an icy stare.


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The right hon. Member for Plymouth, Devonport (Dr. Owen) made a number of points. He and the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) put together an amazing idea-- that the Bill went in tandem with the Government's refusal to appeal in the Ponting case. I am not sure how the right hon. Member for Devonport supposes that one can appeal against an acquittal ; that is something that even I, as a layman, know is not easy to do. He made a point about hearings in camera and, so as not to waste the House's time, I refer him to paragraph 146 of the Franks report which deals exhaustively with this matter. He was right about judicial review. That is to say, the general law of judicial review will allow a challenge to be brought of a decision to notify a person under clause 1 and no amendment is therefore required to secure that result. My hon. Friend the Member for Davyhulme (Mr. Churchill) again produced his own story. On the facts that he stated, the two men who made the disclosures would have been able to make an extremely robust defence against any suggestion by any prosecution in respect of the harm test for defence, which would be the relevant one in that case. I do not easily see how the prosecution could have sustained its case in that hypothetical example.

I do not want to repeat to the House what I said in reply to my right hon. Friend the Member for Castle Point (Sir B. Braine) because, unfortunately, he was not here when I spoke. However, he will be able to read what I said at some length. I listened carefully to the cases that he cited. The information in the cases that he cited came from home and referred to areas not covered by the Bill, although covered by the Act. The official concerned told him that because of the Act, he could not let my right hon. Friend have the information that he wanted, but he would not be able to tell him that in future under the Bill.

My right hon. Friend raised the case where information came not from home but from abroad--for example, from the American Government or the EEC. I can reassure him on that point. I do not see, in the case he mentioned, how either the facts that would be disclosed or the fact of disclosure could possibly have jeopardised our interests abroad, so it would not have fallen within the Bill in that case either.

I have avoided going into previous cases, but in response to the remarks of the hon. Member for Birmingham, Erdington (Mr. Corbett) I would say that if in the future a civil servant--not a member of the intelligence or security services--disclosed information about public safety in a nuclear installation, he could not be prosecuted unless harm was done under one or more of the specific tests and definitions in the Bill governing security and intelligence, defence, international relations and crime.

My hon. Friends the Members for Harrow, East (Mr. Dykes) and for Aldridge- Brownhills (Mr. Shepherd) pursued the issue of clause 3(3), which is obviously causing difficulty, and which I have failed to get across. It is simply that, even if the prosecution chose to argue that it was the fact of disclosure, rather than the contents of disclosure, which caused harm, it would in either case have to show that the disclosure passed the test of harm affecting our


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interest abroad. So it is not the case that the fact of disclosure would be an absolute offence ; it would have to pass the test of harm.

I sympathise with my hon. Friend the Member for Aldridge-Brownhills because when hon. Members were criticising his amendment, I heard him say, with his back rather against the wall, "Well, at the end of the day the jury will get it right." There was a moment of fellow feeling because I have had to use that argument, too. Now we have freed him from his concern with ministerial certificates, although I admit he put them in only because he thought we would not be brave enough to remove them.

Mr. Richard Shepherd : I put them in where?

Mr. Hurd : In my hon. Friend's Bill.

Mr. Shepherd : The assertion would have been that there would have been a review procedure of them. They were not the absolute doctrine that the Home Secretary constantly seems to think they were. I wish he had read my Bill originally. That would have been a help in this process.

Mr. Hurd : I did read it, and I heard my hon. Friend explain that he put in a ministerial review because he thought we would not be brave enough to leave ministerial certificates out. We have been brave enough to leave them out, so he and I can have faith in the jury.

My hon. Friend the Member for Aldridge-Brownhills made an excellent speech on his Bill about the need to strike a balance between security and freedom. In everything I have heard him say--and I must have heard almost all his speeches on this subject--he has displayed no sign of striking this balance in what I would regard as a fair way. I admire his conviction, but there seems to be no sign of understanding among many critics of this Bill how information about terrorism, terrorists, counter-terrorism and the activities of foreign spies might be disclosed, with substantial damage to the protection of the community, if a door were left open in the way this series of amendments would provide. That is the point to which my hon. and learned Friend the Member for Burton (Mr. Lawrence) referred.

Almost all the examples we have had have been hypothetical or about past allegedly conscientious public servants being tempted to breach the duty of confidentiality because of some good that they wanted to do. But we must take into account public servants who might have less good motives--who might have bad motives and who would be tempted or encouraged by amendments such as these to inflict quite serious damage on the interests of the citizen because they felt that Parliament had given them a way to get away with it.

I have not been particularly corrupted by office to distort my view in these matters. I believe that I should be conscious of this danger and of the gain to the enemies--not of the Government but of the citizens whom we are protecting--which is inherent in this series of amendments.

Mr. Aitken : The Home Secretary should not be allowed to get away with that reply. Although the hour is late, I must criticise his lamentable answer to what has been a great debate. It has been great because those who have sat here for six hours and 44 minutes know that across the Chamber there has been an amazingly broad measure of agreement in support of the amendment. It has been supported by a former Prime Minister, a former Home


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Secretary, a former Foreign Secretary, a former Defence Secretary, the Father of the House of Commons, and a broad spectrum of opinion. We are debating a constitutional measure which needs, if it is to survive across the generations--when different complexions of power groupings will be in place in Parliament--a broad spectrum of support. To see it narrowed down to one sectional interest is a grave mistake, not just today but for the future generations for whom we are legislating.

10.45 pm

I ask myself what is the mystery behind the Government's adamant refusal to take on board the right to allow a defendant accused of breach of the Official Secrets Act to say in court, "Please, jury, listen to my case : I acted as I did because I was trying to prevent a serious crime"--a serious fraud, a serious abuse of authority, or major misconduct or wrongdoing. What is the mystery? Why will the Government not accept a right which, as I shall point out in a moment, has been in the law for over 75 years? I can find only one reason--the quite extraordinary attitude on the part of the Prime Minister that there is no such thing as an acceptable amendment when the matter of debate is in the context of secrecy or security, that on no terms and in no conditions can such an amendment be accepted. That attitude shows a worrying contempt for Parliament and I am strongly critical of it.

The Home Secretary has produced two arguments in defence of his thesis and of his great attempt to persuade us that there is a nice cuddly, libertarian little sheep, under the wolf's clothing of authoritarianism with which the Bill and his refusal to accept this amendment are masked. He has argued that at the moment, in the law as it stands, there is no such thing as a public interest defence, but that contention does not stand up to serious examination. In his winding-up speech he did not answer the point that the right is definitely provided for in the Obscene Publications Act.

More importantly, the Home Secretary neglected the point that the 1911 Act provides for a defence of public interest. That Act was probably the worst piece of legislation ever to be passed by the House of Commons, in living or even historic memory, but it had one redeeming feature--section 2(1)(a), which provided that a person could argue that he had disclosed information in the interests of the state. The idea that that is not a public interest defence is denied by the report of the 1938 Select Committee, which I quoted, and by the example of Mr. Wigram and all the other anti-appeasement civil servants who briefed Winston Churchill. It is denied by the case of Mr. Duncan Sandys, it is denied by the Ponting case and it is denied by the Sunday Telegraph secrets case in which I took part. If I really want to convince my hon. Friends that something quite wrong is being done today I will take up the challenge presented to me some seven hours ago by the hon. Member for Linlithgow (Mr. Dalyell). He argued that the Ponting case proved that, somehow or other, the public interest defence was there and was a real safeguard. I suspect that my hon. Friends approve of this Bill because they think, "The Pontings of this world would jolly well be convicted--and a good thing too."

Now that I have had time to look the matter up in the Library, I will give a graphic example of how a public interest defence is right and necessary, and how it once


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worked in a grave case in 1969 in which this House was misled. I am sorry if this embarrasses some Opposition Members opposite, but it will take no more than a couple of minutes.

The hottest foreign affairs political controversy at that time was the Nigerian civil war. I was not a Member of Parliament but a journalist writing articles in which I referred to the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), for example, as a young meteor. As a foreign affairs correspondent I wrote an article based on what was known as the Scott report, which was all about the Nigerian civil war and the supply of arms to Nigeria. Before publishing it I consulted a dear friend who was then a Privy Councillor and a Member of this House--the right hon. Sir Hugh Fraser. I remember to this day how, when he first read the then unpublished copy of the Scott report, he threw back his fine Highland chief's head and whooped, "This proves they lied."

He was referring to statements made in the House, some of them by the then Prime Minister, Mr. Harold Wilson who, in relation to British arms supplies to Nigeria, told the House on 16 May 1968 : "we have allowed the continuance of supply of arms by private manufacturers in this country, exactly on the basis that it has been in the past, but there has been no special provision for the needs of war."-- [Official Report, 16 May 1968 ; vol. 764, c. 1397-8.] A few months later the Foreign Secretary, Mr. Michael Stewart, said :

"The arms which we have supplied have been broadly, both in quantity and quality, what we were supplying before war began." The Sunday Telegraph secret case proved decisively that those statements were at best gravely misleading. Before the war began, Britain had been supplying something like £70,000-worth of arms per year to Nigeria. When the Sunday Telegraph published its article, Britain was supplying £10 million-worth of arms to Nigeria of a completely different quality and quantity than before.

Sir Hugh Fraser was right to see that as an example of the House being misled and the evidence has proved him right. That example is relevant to today's debate because it was open to the defendants in that case to argue- -under the right of a public interest defence which still exists in the official secrets legislation--that a major wrongdoing had occurred and the House had been misled. Therefore, there was a genuine justification for them to go before a jury and claim a defence because the Scott report was published in the interests of the state to show that the House was being misled. That is a sound, solid, copper-bottomed example of why a public defence is needed, why the public interest defence is in the 1911 Act and why it succeeded then.

If we sweep that defence away now and say that we do not need it because the Government's say-so is sufficient, we throw away a small but very important bulwark of our liberties which have defended the country well in the past. The Bill is a real sign that three terms in office have made the Government unresponsive to parliamentary mainstream opinion and reluctant to defend liberties. To use a harsh term, the Government have become far too arrogant in their belief that they have a monopoly of the right point of view. The public interest defence worked in the past and it should be maintained. It does not deserve to be obliterated by the Bill and it is a great pity that the Government will not accept the amendment.


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Mr. Dalyell : Amendment No. 91 heads this group of amendments. Very often senior Ministers make speeches, leave the Chamber and return before the wind-up speeches. I want to pay tribute to the Home Secretary for having been in his place since 4 pm to listen to the debate. He will have recognised that this has been a House of Commons occasion, not a party occasion.

Will the Home Secretary go back to the Cabinet and reflect that right across the political spectrum in the House there are Members who have worked hard on the Bill and who think that on this particular issue he may be wrong? There is no shame in the Government changing their minds. If the House has reached a consensus no shame would attach to the Home Secretary and there would be no crowing from the Opposition if he changed his mind. Action could be taken in the other place.

I have tabled amendment No. 91 as a symbol. Other hon. Members may think that their amendments or new clauses are better, and they may be right, but we are voting on a symbol now.

Question put, That the amendment be made :--

The House divided : Ayes 179, Noes 267.

Division No. 73] [10.53 pm

AYES

Abbott, Ms Diane

Adley, Robert

Aitken, Jonathan

Allen, Graham

Alton, David

Anderson, Donald

Archer, Rt Hon Peter

Armstrong, Hilary

Ashdown, Rt Hon Paddy

Ashton, Joe

Banks, Tony (Newham NW)

Barnes, Harry (Derbyshire NE)

Barnes, Mrs Rosie (Greenwich)

Barron, Kevin

Beckett, Margaret

Benn, Rt Hon Tony

Bennett, A. F. (D'nt'n & R'dish)

Bermingham, Gerald

Bidwell, Sydney

Biffen, Rt Hon John

Blair, Tony

Blunkett, David

Boateng, Paul

Body, Sir Richard

Boyes, Roland

Bradley, Keith

Braine, Rt Hon Sir Bernard

Brown, Nicholas (Newcastle E)

Bruce, Malcolm (Gordon)

Buchan, Norman

Caborn, Richard

Campbell, Menzies (Fife NE)

Campbell, Ron (Blyth Valley)

Campbell-Savours, D. N.

Canavan, Dennis

Clark, Dr David (S Shields)

Clarke, Tom (Monklands W)

Clay, Bob

Clelland, David

Clwyd, Mrs Ann

Cohen, Harry

Corbett, Robin

Corbyn, Jeremy

Cousins, Jim

Critchley, Julian

Crowther, Stan

Cryer, Bob

Cummings, John

Dalyell, Tam

Darling, Alistair

Davies, Rt Hon Denzil (Llanelli)

Davis, Terry (B'ham Hodge H'l)

Dewar, Donald

Dixon, Don

Doran, Frank

Dunnachie, Jimmy

Dunwoody, Hon Mrs Gwyneth

Dykes, Hugh

Eadie, Alexander

Evans, John (St Helens N)

Fatchett, Derek

Field, Frank (Birkenhead)

Fisher, Mark

Flannery, Martin

Flynn, Paul

Foot, Rt Hon Michael

Foster, Derek

Foulkes, George

Fraser, John

Garrett, John (Norwich South)

Gilbert, Rt Hon Dr John

Gilmour, Rt Hon Sir Ian

Godman, Dr Norman A.

Golding, Mrs Llin

Gorman, Mrs Teresa

Gorst, John

Gould, Bryan

Graham, Thomas

Grant, Bernie (Tottenham)

Griffiths, Nigel (Edinburgh S)

Hattersley, Rt Hon Roy

Heath, Rt Hon Edward

Heffer, Eric S.

Henderson, Doug

Hinchliffe, David

Hogg, N. (C'nauld & Kilsyth)

Holland, Stuart

Home Robertson, John

Hood, Jimmy

Howells, Geraint

Hoyle, Doug

Hughes, John (Coventry NE)

Hughes, Robert (Aberdeen N)

Hughes, Simon (Southwark)

Illsley, Eric

Ingram, Adam

Jones, Martyn (Clwyd S W)

Lamond, James

Leadbitter, Ted

Leighton, Ron


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