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Column 358

Squire, Robin

Stanbrook, Ivor

Stanley, Rt Hon Sir John

Steen, Anthony

Stern, Michael

Stevens, Lewis

Stewart, Allan (Eastwood)

Stokes, Sir John

Stradling Thomas, Sir John

Sumberg, David

Summerson, Hugo

Taylor, Ian (Esher)

Taylor, John M (Solihull)

Taylor, Teddy (S'end E)

Temple-Morris, Peter

Thompson, D. (Calder Valley)

Thompson, Patrick (Norwich N)

Thorne, Neil

Thornton, Malcolm

Thurnham, Peter

Townend, John (Bridlington)

Tredinnick, David

Trippier, David

Trotter, Neville

Twinn, Dr Ian

Vaughan, Sir Gerard

Waddington, Rt Hon David

Wakeham, Rt Hon John

Walden, George

Walker, Bill (T'side North)

Waller, Gary

Walters, Sir Dennis

Wardle, Charles (Bexhill)

Warren, Kenneth

Watts, John

Wells, Bowen

Wheeler, John

Whitney, Ray

Widdecombe, Ann

Wiggin, Jerry

Wilkinson, John

Wilshire, David

Winterton, Mrs Ann

Winterton, Nicholas

Wolfson, Mark

Wood, Timothy

Woodcock, Mike

Yeo, Tim

Young, Sir George (Acton)

Younger, Rt Hon George

Tellers for the Noes :

Mr. Tristan Garel-Jones

and Mr. Kenneth Carlisle.

Question accordingly negatived.

Clause 1 agreed to .

Clause 2


Mr. Hattersley : I beg to move amendment No. 6, in page 2, line 31, leave out damaging disclosure' and insert

a disclosure which would cause serious injury to the interests of the nation'.

The Second Deputy Chairman of Ways and Means (Miss Betty Boothroyd) : With this, it will be convenient to take the followingamendments : No 7, in page 2, line 34, leave out damaging' and insert

is one which would cause serious injury to the interests of the nation.'.

Government amendment No. 86.

No. 8, in page 2, line 36, leave out prejudices' and insert causes actual harm to'.

No. 20, in page 2, line 36, leave out prejudices' and insert causes serious injury to'.

No. 21, in page 2, line 37, after their', insert defence'. No. 22, in page 2, leave out lines 40 to 44.

No. 9, in page 2, line 41, leave out jeopardises' and insert causes actual harm to'.

Mr. Hattersley : Amendment No. 6 provides the Committee with an opportunity, or as much opportunity as the timetable motion allows, directly to examine one of the protections that, according to the Home Secretary, run through the Bill and provide a safeguard against prosecution and conviction for trivial or inconsequential offences. The amendment specifically refers to the provision in clause 2(1), in line 31, that a disclosure is unlawful only if it is damaging. Through this amendment, we seek to replace the general motion of "damaging disclosure" with the more precise concept of

"a disclosure which would cause serious injury to the interests of the nation."

The amendment relates exclusively to matters concerning defence. I assume that the Home Secretary will not object to that, as it is the sort of example that he

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enjoys. I remind him, in the hope that a vestige of shame is retained in his attitude towards the Bill, that he told the Conservatives at Cambridge last week that a public interest defence would provide an excuse for disclosing the battle plans of the British Army of the Rhine.

Mr. Hurd rose --

Mr. Hattersley : The shame manifests itself.

6.15 pm

Mr. Hurd : It was esprit d'escalier. I thought of an argument after the debate here that I had not thought of before. If the right hon. Gentleman considers his previous amendments, which the Committee rejected, he will find that they are open to the description that I gave.

Mr. Hattersley : One of the difficulties of the debate is that the Government always use their best argument outside the Chamber. We must hope that the Minister of State can think of some better arguments outside the Chamber than those that he advanced in defence of the Government's position in the previous debate. We look forward to hearing the Home Secretary justify his position when we come to Report.

We have chosen to take the example of defence in part because it is a hard case. It is one that we should have to justify were we to say that a more stringent definition of damage, harm or serious damage or harm would be acceptable. The amendment would make the criteria against which harm is judged a great deal more precise. While it is explicitly concerned with information relating to the armed forces, it provides the Committee with an opportunity for general examination of our strongly held view that prosecution should be limited to matters which affect the security of the state.

The Home Secretary may argue that such is the case even now, for the clause refers to, and therefore prosecutions are limited to, something described as "damaging disclosure". In the Home Office press release announcing the publication of the Bill, he equated that concept of "damaging disclosure" with specific tests of harm to the public interest. Equating those two things was wholly unjustified because the definition in the Bill gives a whole new, much wider and, I would argue, more vacuous meaning--if, indeed, it has any meaning at all--to the word "damaging" as the Bill intends it to be understood. In clause 2(2)(a), line 36, the term "damaging" is defined in its relationship to the armed forces. It begins with the assertion that a disclosure is damaging if

"it prejudices the capability of, or any part of, the armed forces of the Crown to carry out their tasks".

That means any task--not serious tasks, tasks in defence of the realm, or tasks in pursuit of their role within the North Atlantic Treaty Organisation. Farcical though it may seem, within the terms of the Bill it would be "damaging" and therefore a criminal offence if, by unauthorised publication, an official made it more difficult for troopers of the household brigade to arrive on time at Smith's lawn to act as labourers during a polo match.

One is always torn between pointing out the triviality of aspects of the Bill by giving trivial examples and reminding the Committee that, although the trivial examples show how wide the Bill's application might be, they also reveal a serious issue in the extent of its coverage. The Smith's

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lawn case which I gave as an example of triviality is not beyond the bounds of possibility. I decided on that as an example after reading newspaper letters which suggested, rightly or wrongly, that at a time when the defence budget is under pressure, members of the armed forces should not be employed on such social tasks. It is easy enough to imagine a demonstration delaying the progress of a bus from Knightsbridge to Windsor and the time of departure of the bus being revealed to the protesters by a dissentient in the Civil Service. I would regard that dissentient's conduct as deplorable, but we are not concerned with our subjective judgment about the behaviour of individuals. We must ask ourselves whether such an individual should be prosecuted under an Official Secrets Act and what kind of Bill would confer the power to make such a criminal prosecution in such admittedly and intentionally trivial circumstances.

My next example is perhaps clearer, more obvious, more meaningful and more practical. On Second Reading I told the House about the prospects of a fraud being committed at a Government defence establishment. I asked the House to assume that a civil servant had discovered corruption at a royal ordnance depot and that the news of that scandal was suppressed by authority. The hon. Member for Wycombe (Mr. Whitney) was scandalised that I could suggest that such a thing might happen. Since that debate, I have received several letters from old soldiers giving examples of my hypothesis.

I wish to pursue the example as a hypothesis. There is corruption and internal complaints are suppressed. A member of the armed forces reveals the scandal so that it can be cleaned up. There is no doubt that under the Bill the man or woman who made the revelation would be prosecuted. The protection of the harm clause would not apply, because harm would have been done. The revelation would almost certainly prevent the depot from operating with its normal day-to-day smoothness and the operation of the armed forces would have been prejudiced in that particular. That would be enough to convict. Few sensible people would doubt that the revelation was in the national interest. If amendment No. 6 is carried, the prosecution would not in those circumstances succeed. Far from doing serious injury to the interests of the nation, my hypothetical disclosure would, in the long term, benefit the armed forces and the country.

The distinction between the harm test not providing protection in that case and my amendment doing so rests on the nature of the harm test as described by the Home Secretary--wholly accurately--when we debated the matter on Second Reading. The Home Secretary told the House :

"The Bill does not allow the defendant to argue that although his disclosure has caused the specific harm, and he knew that it would, the court should weigh that against some other consideration." When pressed by me, he was absolutely clear and absolutely right when he said :

"the defence would simply argue that harm had not been done or that capability had not been damaged but neither the prosecution nor the defence could import vague arguments derived from other matters."--[ Official Report, 2 February 1989 ; Vol. 146, c. 470-71.] By that he meant that it would be impossible for the defence to argue that, although a little harm had been done, a great deal of good had come from it. There would be no test of what I shall call net harm--weighing the harm

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against the good and deciding which predominates. If that were the case--if we could judge what I call the net harm--it would in all but name be a public interest defence.

Whatever the terms or description, the fact that a small harm results in prosecution and the large good which comes from it does not constitute a defence seems to most reasonable people to undermine the Home Secretary's idea that the harm test is a defence against trivial prosecution and removes one of the eight, nine, 10, 12 or 15 protections that the Minister of State has told us about in one debate after another.

Mr. Terence L. Higgins (Worthing) : I believe that this is an appropriate point to intervene. Is there not an intermediate stage in the story that the right hon. Gentleman is recounting? Does not the civil servant go up the Civil Service hierarchy, if necessary to the head of the Civil Service, to seek a remedy before the events that the right hon. Gentleman described take place?

Mr. Hattersley : Yes, that is within his power and according to the Government that is what he should do. From the history which has been drawn to my attention since the previous debate--from letters on the subject--it is reasonable to imagine occasions when all attempts to object through the proper machinery have failed. Even if that only happens once, only happens in theory or does not happen very often, is it right that a person who discovers wrongdoing should not be able to offer as a defence the fact that although revealing the wrongdoing caused embarrassment, inconvenience or disruption, the revelation was a service to the nation?

The extent of the harm must be weighed under the terms of the amendment. The right hon. Member for Worthing (Mr. Higgins) must remember the other point. By stating that harm is the criterion and by defining it in the way in which it is defined in the Bill, no matter how trivial the harm, it is automatically a cause for prosecution and for conviction. On both criteria, the Bill is at fault.

The concept of harm and the serious injury concept which extends it, had their origins in the Franks report, which came down clearly on the side of serious injury being the measurement against which criminal prosecution should take place. That report proposed that a serious injury test should apply to criminal prosecutions in cases were unauthorised information about foreign relations, defence and the security and intelligence services was revealed.

The Home Secretary always asserts--and no doubt he will reassert it today-- that the Franks espousal of the specific damage test is irrelevant because the Franks report was based on the notion of ministerial certification establishing what was an official secret and what was liable to prosecution in consequence. He has never done more than assert that the two things-- certification and serious injury tests--are necessarily linked. I see no justification for his assertion that they go hand in hand. I look forward to hearing the Home Secretary's justification later.

I will explain why I cannot accept the connection. Under the Bill, prosecutions will conclude with the jury making a judgment about the effects of revelation. That was not anticipated by Franks, but that is no justification for refusing to include a test of serious injury against which the jury will make judgments about the effects of the revelation.

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The jury must take a decision after direction on law. As the Bill stands, the law requires conviction if a disclosure

"prejudices the capability of, or part of, the armed forces of the Crown to carry out their tasks"

and that applies whatever the task, no matter how trivial or temporary. That is how harm is defined. That is a wholly unreasonable criterion against which to measure guilt, to obtain conviction and justify a prison sentence. A much more reasonable test for the jury would be to decide whether disclosure was damaging, and seriously damaging, to the national interest.

There are other reasons why the definition of what sort of information is revealed should be changed. As things stand, the definition of information which if revealed results in prosecution is extraordinarily wide. Not only is it a criminal offence to disclose any information which prejudices any action by the armed forces ; it is similarly an offence to disclose any information which is likely to have that effect.

Technically at least, revelation of information which is likely to make the bus carrying the band turn up late at the garden party is an offence under the Bill. Information which is likely to have the effect of making the military band turn up late for the garden party is an offence under the Bill. The Home Secretary smiles, and I am glad to see him do so, but my belief is that that is not the result which the Home Secretary intended. I ask the Home Secretary to take a more rational view of the criteria against which harm and damage to the nation and the real effects of the Bill are measured. Throughout our discussions, we have tried to draw a distinction between the suppression of information that, if revealed, will be genuinely damaging to the national interest and the allowance of, or support for, the revelation of information that will have no lasting damage. Without the criterion that we propose, that distinction is not made. If the Home Secretary cannot accept our amendment, only one conclusion can be drawn-- that the Government want to retain the catch-all powers, but in a concealed way.

6.30 pm

Mr. Buchan : I wish to continue the argument about the balance between harm done and public interest in regard to a clause that refers to an absolute power in defence matters. My right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) gave the example of an individual exposing corruption. I shall give a hypothetical example, although it may prove to be not so hypothetical after all.

First, I refer to the case of the radiation leak at Windscale. What would have happened if Windscale had been a military establishment, and if an individual had revealed that leak in the interests of public safety? Under the Bill, he would automatically be guilty, because he would have done damage by prejudicing the capability of that defence establishment.

On the Clyde, there is a major nuclear base. Anything disclosed about that base which could be to its detriment might be said, under clause 2, to cause harm. But if a radiation leak occurred at that base, harm would be done to a number of nearby towns, and even to Glasgow itself. It would be necessary to reveal such a leak in the interests of the nation. But even under the amendment proposed by the Home Secretary, damage would be done to the

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