Column 363nation's defence capability, in the sense that the efficacy and efficiency of that base's nuclear deterrence would be brought into question.
There is a clear balance of interest, but not a balance of judgment. There is a balance of interest in favour of defence secrecy, but not a balance of interest relating to the need to disclose facts affecting public health--so that public authorities could deal with the situation by evacuation, for example. There is no balance of judgment, because the clause deals only with the question whether damage is done to the nation's defence capability, and allows for no judgment to be made between the relative balance of those two interests.
Government amendment No. 86, which proposes to change the word "prejudices" to "damages", does not go anywhere near tackling the situation. What is needed is the precision of amendment No. 6 and the wording
"a disclosure which would cause serious injury to the interest of the nation."
There is no doubt that the interest of the nation would be damaged if a radiation leak at a military establishment were disclosed and if no action were taken by the civilian authorities to deal with it. Our amendment would deal with that real problem. I say that it is a "real problem" because I am dealing with an actual case. After the experience of Windscale in 1957, there is no doubt that something similar could happen in relation to a military establishment. The Home Secretary looks as though he wishes to make a point.
Mr. Hurd : The hon. Gentleman seems to be switching his argument between civilian and military installations, and assuming that Windscale is a military installation. In the case of a civilian institution, a different range of arguments apply. Such a case would fall outside the scope of the Bill, but not outside section 2 of the present Act.
A radiation leak occurred at Windscale, which was not disclosed. Today, we have on the Clyde a military defence establishment. If a leak at a civilian installation was covered up, a leak on a military base is likely to be covered up also--it may be considered even more important to do so. If a radiation leak occurred on a warship, when the potential damage would be much greater, and if an honest whistleblower, with the interests of the public in mind, disclosed that leak, there would be no balance of judgment between the damage done to defence interests and the protection against the potential damage to the local community.
Clause 2 makes the individual responsible for such a disclosure automatically guilty. I cited a real example involving a civilian installation, but one that could recur in respect of a military installation. The Government's provision does not hold, and the clause should be amended so that there will be a balance of judgment between national interest and greater public safety. Now does the right hon. Gentleman understand my point?
Column 364Mr. Hurd indicated assent.
I draw the attention of the Committee to what I suspect is retrospective notification in clause 2. There has been a Front Bench admission that there will be no retrospective notification of people under section 1 of the Official Secrets Act 1911. However, clause 2(4)(c) gives a definition of defence that includes "intelligence". I am worried in case that is a back- door method of restrospective notification. It suggests that anyone who has been a Crown servant at any time will be subject to that provision.
Clause 2 defines defence, very broadly, as intelligence. That is a matter to which the Committee should give its serious consideration. In the past, there have been occasions--this relates specifically to the test of harm and serious damage--when disclosures relating to intelligence have been made that, although not damaging, have caused great controversy. I give three examples concerning advice to the Prime Minister, where disclosure was subsequently demonstrated to be clearly in the public good. My concern is that, if clause 2 is interpreted as offering retrospective notification, it will be prohibitive.
The first example must be the case of Anthony Blunt, which sank the Government's last attempt to undertake a bit of reform. It failed miserably ; but why did it fail?
In November 1979, Anthony Blunt was contemplating defamation proceedings against an author. The Government had a clear choice. They could stand back and watch Blunt perjure himself in the witness box, which was the advice that they received from the Security Service, or they could make a statement which would expose Blunt's treachery. The Security Service argued at the time that it would be fatal for the Prime Minister to make any kind of statement relating to Anthony Blunt, because it would turn the potent weapon of immunity from prosecution into something completely useless : no one else would ever believe an offer of immunity from prosecution if it were disclosed officially that an individual had been given such immunity. Thanks to the intervention of the then Attorney-General--and, I suspect, to her own background as a barrister--the Prime Minister declined to take that advice, and made a very full statement. Let me cite a related case with which I was involved. This was another important disclosure, which I think was made very much in the public interest and did not jeopardise security or the nation. At the time of the Blunt disclosure, the House was given an assurance that no one else had been given immunity from prosecution, and that there had been no other traitors who had confessed. Hon. Members will recall that, within a matter of months, a man called Leo Long was revealed to have been a spy and a traitor, and had made a statement to the Security Service. When the matter came before the House, the advice of the Security Service was, "Of course, Leo Long is an entirely different case. He did not receive immunity from prosecution ; he was simply told that he would not be prosecuted." That definition surprised many people, especially lawyers.
I cannot believe that the Government Front Bench can be sanguine about this subject, in view of the advice given to the Prime Minister recently about Sir Roger Hollis. There was a clear implication that no Soviet penetration of the security or intelligence services had taken place after
Column 365the second world war--that all the evidence of such penetration was pre-1945. That is very relevant, because it was the one statement that prompted Peter Wright to say, "Hang on a second : I know that that isn't true. There is evidence of Soviet penetration, particularly of the Security Service, in 1963."
This is a minefield. Great care must be taken, and I would be very nervous about any kind of back-door notification. In my view, disclosures of this kind can certainly be in the public interest.
Members of the security and intelligence services understand their position, although they may not like the idea of being told retrospectively that they are now covered by an entirely new form of legislation that restricts their human rights. And who knows--many of them may well be prompted to go to the European court in the future. They have experienced, or are about to experience, retrospective legislation. But my argument does not concern people who are already members of the intelligence and security services, or are joining them now. They accept the burden of responsibility knowing full well the implications and, indeed, the restrictions. I am concerned about the business of notification.
Clause 1 would not only include members of the intelligence and security services--who, as my hon. Friend the Member for Thanet, South (Mr. Aitken) suggested, are now members of a unique group like a leper colony, never able to make any kind of disclosure or to discuss their work in any circumstances. It would also include those who would be subject to notification. Although we have received an assurance from the Government that there will be no retrospective notification, I believe that the clause, and the subsection to which I have referred, can be interpreted as exactly that : back-door, retrospective notification.
Let me give a more specific example of what could be described as a dilemma. Some years ago a British business man was imprisoned in the Soviet Union for espionage. He was subsequently swapped and brought back to this country. We now know that he was in the employ of the Secret Intelligence Service at the time.
That man would have an interest, would he not, in learning that his case officer--the man who recruited and employed him--had been revealed in documents, declassified in the United States, as having been in touch with the Soviet military intelligence service, the GRU, in 1946? It would certainly be of considerable interest to someone who had spent eight months in the Lubianka to learn that not all his difficulties might have been at the hands of the Soviets--that there might have been an entirely different aspect of his case. Yet not only will he be unable to pursue or investigate the matter ; he will be unable to discuss his experience or to seek advice.
I urge the Government to recognise that they are not legislating to deal with some obscure future threat. At present 75 books are published in England and America each year on the subject of intelligence, and 300 universities in America offer intelligence courses. This is an open, legitimate topic for study, and it is absurd to try to
Column 366prevent people from providing the benefit of their experience. We are limiting their human rights if we do that.
Mr. Winnick : Allegations have been made before that Sir Roger Hollis may have been a Soviet spy. I have not a clue whether he was or not, but is it not true to say that the same accusations are made from the other side? I well remember that when Beria, Stalin's Himmler, was charged with all kinds of offences and executed, he was accused not of the crimes of which he was really guilty, but--in 1953, shortly after Stalin's death--of being a lifelong agent of British intelligence. I was most surprised that British intelligence had been successful enough to have an agent who was No. 2 in the Kremlin.
Mr. Allason : The hon. Gentleman will be amused to know that the first three heads of the NKVD, the MVD and the KGB all came to a sticky end. They were all executed for exactly the same reason--that they were members of the British intelligence service. Taking up the hon. Gentleman's point about Sir Roger Hollis, I was not making an accusation, and I apologise if that was not clear. I was making the specific point that people within the intelligence community knew for an absolute fact that there was Soviet penetration of the Security Service in 1963. That caused considerable anxiety when the House was assured that the evidence of Soviet penetration could be explained by Anthony Blunt, Kim Philby and Guy Burgess. That was blatantly untrue because the proof related to 1963, not prior to 1945.
I shall now turn briefly to Anthony Cavendish. The Committee will be interested to know that Anthony Cavendish has already written one book and has been the subject of legal proceedings, but that does not concern us. However, his new book contract is for a biography of Sir Maurice Oldfield. As I understand the Bill, he will be in the queue behind John Le Carre -- and probably behind me as well--for the No. 1 court at the Old Bailey, because he will be banned from writing anything on any subject. That ban will include not only his own experiences but a legitimate biography of someone else.
I urge my right hon. and hon. Friends on the Front Bench to realise that the legislation will not work. We will have egg on our faces for so long into the future. I cannot imagine that the Government believe that by turning the legislation into a laughing stock and by guillotining the time allocated to it they will achieve anything except one great objective--to boost the business and profits of publishers in New York and not in London.
Mr. Merlyn Rees (Morley and Leeds, South) : Clause 2 involves the serious matter of defence and it is important that we get it right. I am not sure that the procedures that we are following are the best way of doing that.
The hon. Member for Torbay (Mr. Allason) made me realise the importance of the meaning of words. Although I understand that we have decoupled the Franks recommendation of gearing the matter to classification, certain words still have to be interpreted when the Attorney-General decides to prosecute or when decisions are taken in court. The hon. Member for Torbay referred to the definition of intelligence in one context. I am involved with other contexts in research into terrorism. Only the other day we discussed what is meant by intelligence information. All too often intelligence is no more than information, but the word has a much wider
Column 367meaning than simply a collection of facts. When the terms "intelligence" and "intelligence officers" were used in the armed forces they were not used in the sense in which they are used in books and in general.
The hon. Member for Torbay spoke about the past, and of course time is an important consideration. When does information cease to inflict serious injury? Something may have been important 20 or 30 years ago but is not important now--I am not referring simply to the 30-year rule. The accountability of the Security Service is also important in that context. The hon. Gentleman mentioned the Prime Minister's statement about Blunt. That statement, word for word, had been prepared when I was Home Secretary. If the hon. Gentleman's allegation is true, either in the statement or in the questioning afterwards, that more than three people were involved, there is no way that I would have known many years later whether the answer with which I was provided was true or false, because no information is given to an incoming Government about a previous Administration. Therefore, one is not au fait with all the matters when something breaks.
As the hon. Member for Torbay demonstrated, clause 2 contains many matters that ought to be discussed thoroughly. I shall concentrate on amendments Nos. 6 and 7, tabled by my right hon. and hon. Friends and supported by others, with particular reference to the words "serious injury to the interests of the nation."
I remind the Committee, as I always have to remind myself, that section 1 of the Official Secrets Act, 1911 is the spy provision and that is not affected by the changes made in clause 2 of the Bill. No one has any time for the spies who, for a variety of reasons, engage in selling one country to another for some purpose. We are discussing clause 2, but the real spy provision is section 1 of the Official Secrets Act, which will remain on the statute book.
Let me deal with what is meant by the words "serious injury". Ministers have suggested repeatedly that the Bill deals with disclosures which cause serious harm. The Home Secretary used those words. The amendments use exactly the same words, so there should be no disagreement on that. The Home Secretary said :
"it will be for the jury to decide whether a disclosure caused or was likely to cause the form of serious harm to the public that the Bill specifies."--[ Official Report, 2 February 1989 ; Vol. 146, c. 469.]
The Minister of State said :
"The Government do not accept that the criminal law is the right place to balance one Crown servant's perception of the public interest against the specific and serious damage that his disclosure has caused."--[ Official Report, 21 December 1988 : Vol. 144, c. 540.]
"Serious damage" and "serious injury" are the theme song of the Ministers and of letters that they have written to hon. Members. In his usual way, my hon. Friend the Member for Linlithgow (Mr Dalyell) put 14 questions to the Home Secretary. The Minister of State replied :
"Your fourteenth question is based on the assumption that the object of the Bill is to stop leaks."
The reply continues :
"The object of the Bill is to ensure that in future the criminal law will penalise only those unauthorised disclosures of official information which cause a serious degree of harm to the public interest".
Column 368The Leader of the House, in the guillotine debate, talked about the Bill being a radical
"narrowing of the scope of the criminal law".
He also said that what we will now be dealing with is
"official information whose unauthorised disclosure would cause a serious degree of harm to the public interest."--[ Official Report, 13 February 1989 ; Vol. 147, c. 71.]
In preparing myself to deal with amendment Nos. 6 and 7, I asked myself first why I am deploying an argument when the Home Secretary, his Minister of State and a letter from the Home Office talked about serious injury. What is there against putting "serious injury" into the Bill, because everybody uses those words?
left 7 pm Mr. Corbett : The Home Secretary has been more helpful than he has told us. On 21 December, the right hon. Gentleman spoke about an unacceptable degree of harm to the public interest, implying that there were different degrees of harm or injury. That supported the argument of my right hon. Friend the Member for Morley and Leeds, South (Mr. Rees) that, as the Franks committee said, criminal law should apply only to the area where it is serious harm, and disclosures which did not cause serious harm should not fall within the provisions of the criminal law.
The question of classification may be important to right hon. and hon. Members at later stages of the Bill. I understand that the Government have decoupled classification, as in the report, from the Bill. I understand, too, that that is why the Home Secretary referred to juries in the extract from his speech which I quoted. It is important to my argument to use the classifications, whether it is coupled or uncoupled.
On the Franks committee, we decided to repeat briefly where the criminal law should apply to the classifications used in the Civil Service. "Top Secret" means exceptionally grave damage to the nation. "Secret" means serious injury to the interests of the nation. It said in the debate last week that we felt at the time--I never put my mind to it very much afterwards, but I should have done--that the classification "secret" was given to documents to which it should not apply. When the classification "secret" was used in the leaked National Health Service document, it should not have been. The leaking of that document would not have caused serious injury to the interests of the nation. Whether anybody supports the leaking of that document by a civil servant or not, it would not have caused serious injury to the interests of the nation.
When I re-read our report the other day, it caught my eye that we put in a separate section entitled "Confidential". Under that heading we said :
"It is worth noting that in common parlance confidential' "-- which is the third classification--
"means something less than secret'.
In the Government's system, the marking CONFIDENTIAL represents a secret".
We discovered that "confidential" was a pretty high classification. When one looks at documents which have the classification "confidential", we can see how the
Column 369classification has been misused. Whether coupled to prosecution or not, we decided that serious injury should be the key on which prosecutions should be decided.
classification--"confidential", "secret" or whatever, and whether it was a good or bad classification--would not have been covered under the criminal law, regardless of the damage that might have been alleged? Is the right hon. Gentleman saying that it should be covered by the law, provided that it did serious damage, or is he as liberal as we are?
Mr. Rees : I have never reached the point of having to declare myself a liberal. I shall leave that to the right hon. Gentleman. Of course, I understand that point. What I said was that, in deciding whether or not there should be a prosecution, it does not help if the word "secret" is stamped on documents that should not be classified in that way. It is time that the classification was changed. That document should have had a classification which said that it should not be revealed until next week, after which it would be public knowledge.
I shall quote what the Franks committee said about the security of the nation and the safety of the people. The Franks report has been the bible on which I worked when I was Home Secretary and when I was in Northern Ireland. I recommend that hon. Members read part II, chapter 9, of that report. Paragraph 116 says :
"National security is widely accepted as the prime justification for employing criminal sanctions to protect official information." Paragraph 117 says :
"It is in this context that strong measures are clearly justified in preventing serious injury to the nation."
I want to prevent serious injury to the nation. I do not want there to be any dubiety about that when the legislation is passed. Paragraph 117 continues :
"It is less clear that the criminal law must be brought in to reinforce other means of protection where the possible injury is of a less serious nature. The most obvious example is defence." I quoted that passage because the most obvious example is defence, and clause 2 refers to defence.
The report says :
"It is less clear that the criminal law must be brought in The most obvious example is defence. Some defence information is highly secret : its unauthorised disclosure would cause serious injury to the nation, and it requires full protection. Some defence information is public knowledge."
Some defence information may be classified and protected in this country, but one can read all about it in the United States. We shall come to that point when we deal with information which has already been published.
Paragraph 117 goes on :
"In between these two extremes, there is a continuous gradation In our view, the appropriate test on this basis, in relation to national security, is that unauthorised disclosure would cause serious injury to the nation."
Paragraph 118 says :
"This means that the criminal law would not apply to information the unauthorised disclosure of which would cause some injury to the interests of the nation, but short of serious injury."
That was not a weekend article in the quality press but an inquiry under the chairmanship of Lord Franks, with all his great proconsul experience in government during the
Column 370war and as an ambassador in the United States. It does not apply to all defence information. Some information would not be caught. I want to ask the Home Secretary whether the way in which the Bill is drawn--forget the decoupling--means that the disclosure of information which would cause less than serious injury to the defence of the nation would be caught by this clause and the Bill in general. If it would be, we have moved a long way from Franks, as well as decoupling the classification, which is neither here nor there. The Home Secretary smiles in his diffident way. Is there something wrong in my argument?
Mr. Hurd : The right hon. Gentleman is missing out the other side of the coin that he is minting. The other side of the coin is that the Frank's analysis would lead to a great deal of information--which we are proposing to liberate from the criminal law--remaining under the criminal law, providing that the prosecution could prove in the case of Budget secrets or secret documents on education that serious harm was done. The right hon. Gentleman has not admitted that.
Mr. Rees : I have with me the statement I made in 1976. If the Home Secretary looks at it, he will see that we did the same thing. Therefore, there is nothing new in that. I am talking about defence. Franks said that the test for defence should be one of serious injury only, but is there a departure from Franks which makes the clause more restrictive?
Mr. Gorst : Will the right hon. Gentleman comment on another aspect? If the Home Secretary were to find that the Ponting case and "Spycatcher" arose under defence, he might argue that the words "serious damage" would not have led to a conviction but the word "harm" would. Perhaps the difference between ourselves and my right hon. Friend the Home Secretary on this matter is what would be included and would lead to a conviction and what would be left out.
Mr. Rees : That is an interesting point and is one reason why we should consider the clause in more detail than we will have a chance to do. I appeared as expert witness, or whatever it is in legal parlance, in the Ponting case at the Old Bailey. That is not my wont because, as the Home Secretary points out, I am not noted for liberality.
I appeared at the Old Bailey after discussing the matter with a colleague from the previous Government and I went on one basis. The Government had said that it was not a security matter, did not involve a serious injury to the state and did not warrant the use of the criminal law. Before I made my statement in 1976, the late Sam Silkin, who was then Attorney-General, had a word with me in his diffident way. He was a Law Officer, and was therefore divorced from the ways of government. I said in 1976 that I was authorised by the Attorney-General to say that, because I had made that statement, from that time criminal prosecutions would take place only for serious injury to the state or classifications above that. Therefore, from that time, for a period of three years, Sam Silkin gave effect to those words.
Column 371I am not talking about what happens at the Department of Education and Science or the Ministry of Agriculture, Fisheries and Food, because that is a different argument. We are talking about defence. The Government have gone too far. The test should still be one of serious injury. I accept that classification has gone awry over the years under all Governments and we have to consider how the test should be applied in terms of the words which appear on documents. I understand from words used earlier in the debate that there is some information in Northern Ireland, which, over here, would be seen as unimportant--not just in the seamless robe argument--but which should be protected. Unfortunately, just outside Belfast some soldiers at a sports meeting were killed because a bomb was placed in their unit truck. It is clear that information about the movement of soldiers in Northern Ireland, whether in vehicles leaving Aldergrove and going to Armagh or going to a sports meeting at Lisburn, has to be protected because it is vital to the lives of those soldiers. Some information can be revealed in some places but not in others; I understand that.
How will the system work in practice? I do not want to refer to the clause dealing with the role of the Attorney-General, but he is still in control of prosecutions. I presume that his decision will be based on public interest. That is why I was astonished that the Government continued to act against Wright in Australia under the civil law when permission had been given to Chapman Pincher to publish the same information a year or two before. I know that I am dealing with the clauses dealing with pre- publication, but information is worth protecting only because one is protecting the defence or security services. It is not worth protecting it when it is too late. Will notification mean that every part of clause 2 will, to the Attorney-General, be worthy of prosecution? Will the words "public interest", which I presume still apply to the Attorney-General, mean that he can say, "Let us not proceed with this because it is palpably silly"? Clause 2 is more widely drawn than I expected, and it is important to know for the record what the role of the
Attorney-General will be in defence secrets.
It is important to get things right when we are dealing with defence secrets. It is important when the lives of individuals are at risk. The chapter from the Franks report from which I quoted talks about the security of the nation and security of the people. That is true when we deal with prisons, prison information and certain types of information collected by the police. We do not do a service to the community if we go too far.
These will be the last words that I utter in this debate because I have to go to my home town where there is a local by-election. I cannot resist the temptation to go there as I was involved in the first by-election there many years ago.
It is important that the Attorney-General and other Ministers should know where they stand. It is also important that the people working in the defence services should know where they stand. I believe that the
Column 372Government have gone too far and that their actions will lead to the law being broken in defence matters more often than it should be. They should think again.
Mr. Richard Shepherd : I delayed speaking because I wanted to hear the contribution made by the right hon. Member for Morley and Leeds South (Mr. Rees). I wanted to hear his comments on "serious injury" and Franks, which underwrites many of our views and our approach to the matter.
The right hon. Gentleman mentioned several statements made by the ministerial team. He pointed out that on 2 February 1988 in column 469 of Hansard my right hon. Friend the Secretary of State talked about "serious harm". He pointed out that my hon. Friend the Minister of State referred to "serious damage", on 21 December in columns 540-41 and that on 13 February my right hon. Friend the Leader of the House also referred to that. I saw the transcript and heard the reports and I know that in his address to the Royal Television Society my right hon. Friend the Home Secretary again referred to "serious damage", and it is mentioned in the letter to the hon. Member for Linlithgow (Mr. Dalyell).
That shows the difficulty that we have had. Terms are used inside and outside the House which convey a spirit or sense of the Government's intent. If the Government wanted to legislate with a test of "serious harm", I would have no objection and would support entirely the intention of my right hon. Friend. Government amendment No. 86 reads :
"Clause 2, page 2, line 36, leave out prejudices' and insert damages'."
That is where the difficulty arises. My right hon. Friend the Home Secretary told us in the course of one of our debates that he had listened carefully to the arguments, and he picked up his distinguished former colleague Sir Leon Brittan's observation about the word "prejudice". Sir Leon Brittan said :
"It would be easier to prove that the material that is disclosed prejudices something than that it does serious harm ... I do not see any justification for what amounts to a tightening up of proposals that were originally put forward in 1979."--[ Official Report, 22 July 1988 ; Vol. 137, c. 1430.]
Then, in taking account of what was said in that debate on the White Paper, the Government respond with a significant shift--an amendment to leave out "prejudices" and insert "damages". I am not sure what the Government are trying to do. They talk in terms of serious injury and harm and then eschew the concept in legislation. I know that my right hon. Friend the Home Secretary has shrugged off my comment, but too much of the Bill has been legislation by Home Office press release and statements outside the House, resulting in a failure to give attention to what is proposed in the Bill. A few minutes ago we were debating another matter and I heard the Minister of State, who I take it has now been elevated to the position of a Law Lord, no less, make statements about a judicial interpretation. One reason why my right hon. Friend said that he wanted reform of the law was that he wanted clarity so that everyone would know where they stood. However, every step of the debate has shown confusion, not clarity. What we discussed in the previous debate and shall discuss in this one is our understanding of the Government's intent.
I understand that it is not the Government's intention to prosecute Mr. Le Carre . It would be ridiculous to do so, and no Government would attempt it.