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Mr. Shepherd : The Bill is drafted in such a way that the Attorney- General still has that option. The matter remains unclarified. It would be useful if the Government, having listened to these debates, came forward with amendments to clarify the issue. Clarity is one thing, obfuscation is another; and much of the Bill is obfuscation.
Mr. Gorst : I suggest to my hon. Friend that, although they cannot admit it, the Government distrust the jury system. If the words "serious damage" were used, some cases that they might wish to bring would fall. On the other hand, if the word "damage" were used, unqualified, the jury would not be given the option--having heard the arguments in court--to bring in a verdict of not guilty. I fear that distrust of what juries may do may lie behind the Government's position.
Mr. Shepherd : I accept that point and I understand that the Government, feeling seriously and strongly about an issue that they believe causes serious damage, may fear that the definition may fail to meet the test of a jury. The Government therefore set the barrier of prosecution so low that it would be quite exceptional if a case failed to meet the test. That is why we always return to the Franks committee's definition of what should constitute the level of damage caused by leaked information which would trigger off a criminal prosecution that could render the leaker liable to two years imprisonment. That is what the debate has been about.
I respect my right hon. Friend's concern for the security of information that can damage us all as citizens. However, the way in which he has gone about the matter has not helped his cause. He has determined that no amendments should be taken and that there should be no discussion. That is counter-productive. He then imposes a guillotine which arouses suspicions that the Government are unable to argue their case on the Floor of the House. That damages not only the Government but the Conservative party. It is absurd that we cannot form a consensus on such an important issue. We have a common object--to ensure that information which seriously injures our national interests triggers off a prosecution which is likely to lead to the person who caused the damage being convicted and imprisoned. I have not heard any hon. Member dissent from that principle. It is all that we are trying to establish.
In grasping for so much, the Government have placed themselves in deeper difficulty. Had they been more measured about whom they actually wanted to catch, they would have received the whole-hearted support of the House. Now, however, the Bill is proceeding to the House of Lords under threat of a guillotine.
I shall make a point about this process because there may not be another opportunity. My right hon. Friend the Home Secretary will recall that the original 1889 Act--the first official secrets legislation--was introduced in the House by the Attorney-General. Anyone who has seen the performance of the Minister of State or the Home Secretary--I mean no disrespect--will appreciate why it was necessary for the Attorney-General to present such a complex legal matter to the House.
During our short debate on the possibility of the publication of works of fiction, there was a clear conflict over the legal interpretation of what the clause meant and
Column 374whether the word "or" should be "and"--or, in the words of my hon. Friend the Member for Hendon, North (Mr. Gorst), whether we wanted "one" or "two". At the end of the day, the House was united in thinking that there was no doubt that the clause would trigger the prosecution of Mr. Le Carre -- [Interruption.] --apart from my hon. Friend the Member for Banbury (Mr. Baldry), who took an individual view. Those were legal matters, and with the best will in the world we cannot say that my hon. Friend the Minister of State has inspired us with the confidence to use him to represent our interests in court. [Interruption.] The Government Whip calls out, "Steady on," but on a question of one's liberty, one seeks good advice. We feel that we have been missing good advice on the meaning of the Bill. I intended to read through all the passages referred to by the right hon. Member for Morley and Leeds, South and what he said about the Franks debate, because it is essentially to that that we have been returning. However, I know that my right hon. Friend the Home Secretary is familiar with the arguments. He was in the private office of the then Prime Minister--my right hon. Friend the Member for Sidcup and Old Bexley (Mr. Heath)--when the Franks committee was set up. He will have heard the drift of the arguments that the former Prime Minister adduced during the course of those debates. He may chuckle now, but only last week, he seemed extraordinarily respectful about some of the comments made by my right hon. Friend the Member for Sidcup and Old Bexley.
Of course, I support amendment Nos. 6 and 7, but I also want to speak to Nos. 20, 21 and 22. Amendment No. 20 removes the word "prejudices" from clause 2(2)(a) and inserts the words "causes serious injury" in line with the general theme of the arguments from both sides of the House. Amendment No. 21 inserts the word "defence" before the word "tasks" in line 37 of clause 2(2)(a) so that it reads :
"to carry out their defence tasks".
That is an important point but not a major one. The Army carries out ceremonial duties, and performs a range of duties about which the revelation of information could be said to be slightly damaging, but that is in no way related to the armed forces' defence capacity. Amendment No. 22 is to leave out the whole of clause 2(2)(b). There is concern that, under the Bill as drafted, information vital for us to improve our armed forces' capacity could be ruled "damaging". A case in point was when, during the Falklands war, the boots used by the Army rendered a high proportion of the Welsh Guards unfit for service. To have revealed that information would have been a wonderful signal to the Argentines, who would have known when confronted with a platoon or regiment that they faced only two thirds of the expected forces. On the other hand, if we are prepared to conceal for ever defence information such as that, we could never put the pressure on an Administration to improve the Army's equipment or material. The gain to our armed forces' capacity could be much greater.
Mr. Baldry : My hon. Friend talks lightly about ceremonial duties. I had a constituent who was murdered in the bandstand incident when the IRA blew him up and killed him. There is a definition of "harm". What harm my hon. Friend and those who support his amendment regard as acceptable before it becomes serious harm? I do not
Column 375understand the distinction that he makes between harm and serious harm. He must explain what harm he thinks is permissible.
Mr. Shepherd : I had hoped that the reference by the right hon. Member for Morley and Leeds, South to the Franks report was a shorthand method, as it were, of dealing with that. My hon. Friend the Member for Banbury (Mr. Baldry) claims that there is a definition of "harm" in the Bill. I am waiting for that definition to be spelt out. I have been looking for it. I have not found it in the Bill and if my hon. Friend will explain where it appears I will address my remarks to that. Part of the argument that we are making to the Government is designed to coax them into providing such a definition. Many of the harms that are said to exist are triggered off by, say, prejudice--that is why, at any rate as a pro-tem measure, I support Government amendment No. 86.
Mr. Baldry : The test of harm as an issue was canvassed thoroughly on Second Reading. Clearly, when one is talking about harm and serious harm --if my hon. Friend studies the Official Report of the Second Reading debate he will see that the issue was examined in detail--we go to my hon. Friend's definition of "damage" and "serious damage". Will he explain what damage he would allow without it becoming serious damage? He is arguing that it should be permissible to cause damage to the community so long as it is not serious damage.
Mr. Shepherd : On Second Reading we took the trouble to explain to my hon. Friend and to those who take his view exactly what the Government claimed was being done. We are simply trying to enact what the Government have said that the clause means. The Government rely on the description "serious damage" and "serious harm", and that is what we are trying to incorporate.
Mr. Hattersley : The hon. Member for Aldridge-Brownhills (Mr. Shepherd) has helped me on so many occasions that he will not object to my making a suggestion to him. Will he remind his hon. Friend the Member for Banbury (Mr. Baldry) that in clause 2(2)(a) we at least know how the Government define "harm." It is the prevention and inhibition of the armed forces from doing anything that they might want to do, no matter how trivial or inconsequential. Whatever definition of "harm" is superior to that, it is difficult to think of one that is inferior to that, for it is using the word in a different way from its common usage.
Mr. Shepherd : I am grateful to the right hon. Gentleman for that assistance. The expression "serious injury" or "serious harm" has a place in our preface to all these debates--the Franks report--and it was linked with an internal level of classification which was understood and could be argued by counsel. It was related to serious injury to the interests of the nation and corresponded to secret documents encompassing exceptionally grave damage to the nation. Under these proposals, it is ultimately the jury who determine the level of harm and whether it is serious or trivial. After all, I could make an argument to a jury that to comment that uniforms were unattractive constituted damage to morale. The jury
Column 376would think that ridiculous and no serious prosecution could be mounted on it, but at the end of the day the jury will determine whether it falls within the criteria.
Mr. Aitken : My hon. Friend may be aware of the Official Secrets Act case in 1916, R v. Crisp and Homewood, which was known as the War Office tailors and fly buttons case. The gist of the case was that a War Office tailor was prosecuted for disclosing the contract prices of fly buttons on uniforms, and was correctly prosecuted. Undoubtedly that was a damaging disclosure of commercial danger in the somewhat limited world of tailors and prices.
In answer to the point raised by my hon. Friend the Member for Banbury (Mr. Baldry), I can think of no clearer example of a definition of what might be called damaging from one somewhat narrow viewpoint, which is different from the serious injury and serious damage point to which we are referring in connection with the amendments.
Mr. Shepherd : There is the old test of the difference between damage and serious damage. If I stub my toe, I can say that that is damage. If I break my leg, I can say that it is serious damage. One can then argue about that.
Mr. Buchan : In a sense the word "damaging" is absolute. A damaging disclosure, even if it harms only to a slight degree, remains damaging. So in a literal, linguistic sense, "damaging" might be something extremely trivial. That is why we want to amend it.
Mr. Shepherd : That is the point that we have been trying to make across the Floor of the Committee--that a very low level, almost anything, could constitute a damage. Our fear is that something trivial which could be accepted as slightly damaging or a little damaging should be characterised as seriously damaging.
This Bill is linked with the Security Service Bill. The important difference is that we often legislate in a vacuum in this country, whereas other countries do not. A great advantage that we have with this piece of legislation is that while it has caused some difficulty for the Government, we are not legislating entirely in a vacuum. We have had a committee of inquiry through Lord Franks which has given us an education in the problems that arise.
The Government should accept the concept that serious injury is the appropriate test to put to a jury. It is on that basis that the Government should prosecute, rather than on the basis of damage or prejudice or something of a lesser level. This is criminal law. We want to be sure that we secure prosecutions, but we must also feel sure in our minds that the Government have gone through the mechanics of trying to weigh up the damage and are confident that when they go forward for a prosecution they are targeted rightly and that the law is not used frivolously in front of juries to undermine its integrity, as the 1911 Act undoubtedly was.
Mr. Maclennan : The hon. Member for Aldridge-Brownhills (Mr. Shepherd) said that, in this context, we were legislating in a vacuum. That is not altogether so. We are legislating against a background of the public and international protection of fundamental rights and freedoms--the European convention on human rights, to which this country subscribes.
Much of our difficulty in comprehending the Home Secretary's approach to the amendment flows from the
Column 377fact that he is trying to present himself to two different audiences. Sometimes he is trying to persuade the Committee that he is at heart really a liberal individual, and his intervention in the speech of the right hon. Member for Morley and Leeds, South (Mr. Rees) was designed to suggest that the Bill was confining the law. On other occasions, the Home Secretary tries to emphasise that his prime duty must be the protection of the nation from the serious damage that could flow from the wrongful disclosure of official secrets. In the context of this group of amendments, we are dealing with national defence. The Home Secretary appears to be trying to argue that the mere mention of the words "national defence" is sufficient to enable him to throw overboard whatever liberal instincts he may have and that he can raise the concern that if we do not accept precisely his language, we are by implication putting at risk the national interest in national security.
After the debate we have had today on the test of harm and after debates on earlier occasions, the Home Secretary has to address the question what is wrong with the Franks definition. Why is it not appropriate to incorporate that in the Bill? The language was considered carefully by the Franks committee. I acknowledge that it was considered in the context of the official classification but the official classification was used in the Franks committee report to describe the categories of information which it was felt should be protected by the criminal law. It was in a sense a code. It was to explain exactly what Franks was trying to catch by the criminal law. The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) made the point with greater eloquence and precision. The point was that Franks was specific in the language. I do not see that the mere severing of the ministerial certificate from the process has anything to do with the language. The language is clear and unambiguous and seems to cover the position adequately.
I ask the Home Secretary to address the meaning of the language and to give us a clue why he thinks it is not appropriate, and why he has to produce the test of harm, as he has done for the whole sphere of defence. If he sticks with the language which he has proposed, including amendment No. 86, to replace "prejudices" by "damages", he is at serious risk of not doing what I think he wants to do, which is to square the legislation with the European convention on human rights. I give him the benefit of the doubt.
Let me take the right hon. Gentleman through the argument. The European convention on human rights, which under article 10(2) guarantees the right to freedom of expression, carries within it a limitation of that right, understandably and properly. There may be restrictions of that freedom of expression, such as
"are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety".
I quote that extract, which is relevant to the question of defence.
That is not the end of the matter. Those words have been further interpreted by the European court, giving a much clearer understanding of what they are intended to cover, following two leading cases, the Handyside and Sunday Times cases, both of which involved this. Those cases provided that the test of whether the restriction is
"necessary in a democratic society"
Column 378"whether the interference complained of corresponded to a pressing social need and whether it was proportionate to the legitimate aim pursued".
It follows that we are entitled to ask whether the language of clause 2 serves a legitimate aim, whether it seeks to meet a pressing social need and whether it is proportionate to that need. Those are the tests that would be applied if someone sought to take a case to the European court under the European convention. I put it to the Home Secretary that the damage provisions in regard to defence would not stand up. The point has been made so often in earler speeches that I need not repeat it at length. Unqualified damage, which can be in any given case extremely slight, cannot by definition reflect such a pressing social need as to justify interference with a right so fundamental as that of freedom of expression. At the very least, to satisfy the European convention rights, what is required is not just any damage but serious damage.
I pray that perhaps somewhat arcane argument in support of the amendments because it has not yet been adduced in the debate. I very much want our legislation to conform with our international obligations. I do not believe that it will unless the Home Secretary accepts the amendment.
Mr. Maclennan : Yes, but this Bill, which will shortly be an Act with remarkably little stamp of Parliament upon it, will be the legislation which the European court will be called upon to interpret. I may have misunderstood the Home Secretary. The existing Act would certainly fall foul of the European court. The fact that it takes six or eight years to bring a matter to a decision is a major inhibition, which is why I and my right hon. Friends seek to incorporate the provisions in our domestic law. None the less, in giving effect to the provisions of the clause, the Home Secretary is not taking the opportunity to bring our domestic law into conformity with the provisions of public international law.
Mr. Gorst : Is the hon. Gentleman aware that the argument he is using will be greatly reinforced when we discuss prior publication abroad? There will be absolutely no doubt that, even if it is a matter of national security, if it has already been published abroad, although the pre- publication may have been damaging, publication cannot have added to it. So I would have thought that the hon. Gentleman's argument is valid.
Mr. MacLennan : I am grateful to the hon. Member for Hendon, North (Mr. Gorst) ; I agree with him. Perhaps that point will be made again. There are a number of places in the legislation where it is hard to demonstrate that the restriction on freedom of information which it entails can possibly be justified in terms of the perceived damage that would flow. That is really the root of the matter. One asks oneself why the Home Secretary stands out for this extremely broad, all-encompassing word "damaging" when it would so obviously allow successful criminal prosecution for the most minuscule disclosure. I can only assume that it is because he wants to retain a provision that can be used in terrorism. He wants to be able, as it were,
Column 379to frighten those who are in any way connected with the armed forces into believing that they ought not to talk about what they do, however much it might benefit the public that they should. In fact, he is seeking almost to impose a duty of silence on those who are in possession of information relating to defence, because the damage test is so low that it cannot really limit the possibility of successful prosecution.
I reinforce what the hon. Member for Aldridge-Brownhills said about the duties of members of the armed services. Clause 2(2)(a) speaks of prejudicing
"the capability of the armed forces of the Crown to carry out their tasks".
Well, many of these tasks do not touch the security of the nation. The armed forces have representational roles and ceremonial roles, and, even in the normal course of events, they carry out tasks of a very humdrum kind that have nothing whatever to do with the defence of the nation, save for the fact that they happen to be being carried out by the armed services.
Mr. Baldry : The hon. Member, rather like my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), dismisses ceremonial tasks as if they were nothing. What does he say of those who clearly gave information to the IRA about the changing of the guard in Gibraltar? There could have been substantial loss of life in Gibraltar. The reality is that, sadly, there are in this world many people who wish to injure members of the armed forces, and it may well be that it is at ceremonial events that they are most vulnerable. To say that a ceremonial even is of no importance in this regard rather belittles the hon. Gentleman's argument.
Mr. Maclennan : I can answer that point most simply by saying that the hon. Gentleman's example concerns a course of action that would undoubtedly be caught by the form of words that we are proposing : "disclosure which would cause serious injury to the interests of the nation".
It does not matter to what sort of occasion, ceremonial or otherwise, the disclosure relates.
I think that the hon. Member for Banbury (Mr. Baldry) really has not addressed the fact that it matters not what the incident or the occasion-- the test is whether or not there has been serious injury to the interests of the nation, and the circumstances the hon. Member describes would plainly fall within the amendment that we are advocating.
The Home Secretary has been speaking with two voices on this matter. Outside the House he has been speaking about serious damage. He has tried to convey to the world at large--as, indeed, it has to be said, he has done in earlier debates when we have not been focusing precisely on this issue-- the impression that he is concerned only with serious damage. But the language in the Bill does not reflect what he has said. All that we are asking is that the Bill reflect his expressed intention. If it does not reflect his intention, it expresses a defence of a kind that will enable the prosecution to bring charges of criminal behaviour
Column 380carrying penalties of up to two years' imprisonment for what, by any objective test, would be seen as the most trivial of revelations.
Mr. Aitken : Although we are operating under the shadow of the guillotine, I think that we are performing a very valuable exercise in this line-by-line scrutiny, which, as the hon. Member for Caithness and Sutherland (Mr. Maclennan) rightly reminded us, is all to do with language. The hon. Gentleman and others have covered so much of what is already familiar ground that I can be very brief and give just three reasons for my urging the Home Secretary to accept one or other of these "serious damage test" amendments.
First, I believe that this group of amendments really is the litmus test of the Government's good faith. We have heard from Member after Member about what the Government have said, and we have been given chapter and verse at the Dispatch Box, in earlier debates, and outside the House. Ministers have used phrases like "serious harm" and "serious damage"--not only my right hon. Friend the Home Secretary but also, most recently, two nights ago, the Leader of the House. The Government have gone abroad publicising the notion that this Bill is all to do with occasions when the interests of the nation are in some way or other seriously damaged, yet this very phraseology is not in this ill-drafted, ill-thought-out clause. I ask my right hon. Friend to explain why the Government are willing to use words at the Dispatch Box and on platforms in the country, yet not put them in the Bill. We cannot have a situation in which one of Her Majesty's principal Ministers is prepared to be a lion at Cambridge university and a lion at the Dispatch Box, but a lamb when it comes to the Cabinet Committees that do the drafting of these Bills. He will be open to the charge of being "Mr. Facing Both Ways" if he cannot put into the Bill the very words that he and his colleagues have been using outside the House.
This word "damaging", which is in the Bill at the present time, is weak and unsatisfactory in terms of the criminal law. My hon. Friend the Member for Banbury (Mr. Baldry) is the only person here who seems to think that it is not. One has only to look at how unsatisfactory it is in the civil law to start to recognise how much more unsatisfactory it is in the criminal law. In the civil law, of course, there are damages and damages. Consider, for example, recent libel awards. They stretch from £1 million in the case of Mr. Elton John v. The Sun down to derisory amounts--it used to be a farthing ; now it may be £5--in small cases. There is huge scope for a jury in awarding damages.
If there is this wide scope in civil law, how dangerous would it be in the criminal law. Here we are talking about the liberty of an individual in the dock, on a serious criminal charge of disclosing information--information that is merely damaging, without any qualification or clear definition. On the civil liberties issue--giving a defendant a clear and adequate defence- -we must do better than the word "damaging".
But I am not thinking only of the interests of defendants. I am not exactly a paid-up member of the royal society for the protection of Attorneys- General : nevertheless, I hope I have some genuine concern for the position of the Attorney-General or, in some cases, the Director of Public Prosecutions, in trying to operate this clause. As it stands, with this vague word "damaging", the
Column 381law is as long as the Attorney-General's foot, and almost anything can be argued, and no doubt will be argued, by departmental Ministers and departmental civil servants. People over- reacting to a disclosure will be able to say that is has been seriously damaging--or merely damaging, since the word "seriously" is not in the Bill.
There have been any number of cases through history in which the Attorney- General has been pushed by departmental pressures into prosecuting on the slenderest of grounds. I referred in an intervention in the speech of my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) to the case of R v. Crisp and Homewood, an ancient but still relevant case because it related to defence matters. That was the case of the War Office tailors who disclosed contract prices for fly buttons on uniforms. They were prosecuted for disclosing matters which I am sure that the War Office argued were damaging to the commercial interests of the War Office and the world of defence. Surely no one could seriously argue that the Bill is supposed to cover such a matter, yet it could perfectly well be interpreted that the word "damaging" unqualified was a mandate for more prosecutions of the type of R v. Crisp and Homewood.
"damaging if it prejudices the capability of the armed forces to carry out their tasks".
I fail to see how fly buttons could conceivably prejudice the capability of the armed forces to carry out their task.
Mr. Aitken : My hon. Friend is on to a good point and I concede it. But let me take him a little further down the Bill. The definition of damaging enters territory that is still worrying. In line 41, damaging is defined as something which
"jeopardises the interests of the United Kingdom abroad". That is an extremely wide and vague definition.
Subsection (4) defines defence. Does a defence matter include defence sales? It clearly does. We are entering the world where one could disclose something that is damaging to defence commercial interests, and that is highly unsatisfactory. The Sunday Telegraph case in which I was involved was a defence matter in one sense, because it involved British arms sales to Nigeria. Under clause 2, it could perfectly well be argued that those who disclosed those matters did things that were damaging, in the sense that minor damage was caused by the embarrassment of diplomatic interests. It was covered by the broad definition of "defence" and "damaging". I am sure that this area needs tightening up and the best way in which to do so is by accepting the Opposition's amendment--which applies the "serious harm to the nation" test, or amendment No. 22 which simply knocks out line 41 onwards and makes many of my fears much less relevant. At last the Government have at least made one concession. They have acknowleged that their drafting is less than perfect because here we see the first ever amendment to an Official Secrets Bill or Security Service Bill. The Home Secretary may star in a Bateman cartoon as the Home Office Minister who admitted that this parliamentary draftsmen were less than perfect. Amendment No. 86 takes out "prejudices" and inserts
Column 382"damages". We must give a hearty cheer for this moment of repentance, but the Home Secretary needs to repent more.
The word "damaging", unqualified as it stands, is inadequate to those who might face criminal charges under it. I hope that, even though I have long since given up any hope that Ministers will listen to the House of Commons, the other place will take these criticisms seriously and write into the Bill the kind of protection that was envisaged by the admirable Franks committee and insert the serious harm test.
"it causes serious injury to the capability of, or any part of, the armed forces of the Crown".
I think that I am right in saying that, since the Franks committee reported, whenever such issues have been discussed there has been near- unanimity that special provision should be made for defence information. It is also fair to say that, at all times, the phrase "serious injury" has been accepted in all parts of the House as applying to defence. This is the first time that that phraseology has come under question.
When the right hon. Member for Morley and Leeds, South (Mr. Rees) was Home Secretary discussing the various drafts and Green Papers, there was one area in which there was no dispute--in terms of defence, it had to be serious injury.
There was always an argument, which we shall deal with when we debate the amendments to clause 3, over international affairs. That is a harder issue, because it deals with other Governments. We can argue whether the word "jeopardises" is strong enough. I put my name to the amendment that deals with that more to probe than to criticise. I would prefer "causes serious injury to", but I could live with the word "jeopardises". However, I do not think that I can live with the wording that the Home Secretary is now putting forward. I welcome "damages" because it is preferable to "prejudices", but it must have an additional word, and that should be "seriously". Let me explain why by dealing with an area of considerable interest and some controversy. Nothing could be more central to Britain's defence capability than our nuclear deterrent. In 1969, when the issue of Polaris first came up, there was a question about whether the then warheads would be capable of penetrating the anti-ballistic missile defences around Moscow. The Ministry of Defence, then under a Labour Government, began to discuss whether it might be necessary to harden the warheads so that they could penetrate. That was considered at the time to be highly classified information. It was so classified that it was felt that we should not even discuss it with the Americans, so it had the classification "Top secret. United Kingdom eyes only".
When a Conservative Government came in in 1970, there was a long period during which they considered whether the anxieties about the penetration were so great that they should go for Poseidon and stop continuing with the Polaris A3 missile. Again, that was considered to be a matter of extremely important intelligence information and it was highly classified. I do not know its classification, because I did not see it, but I do not suppose that it was any different. The then Government made a decision that they would not buy Poseidon but would go ahead with a development to harden the system.
Dr. Owen : I do not know whether that was its name at that time. It may well have been. There was a different code name for it in 1959. It was certainly code-named Chevaline in 1974 when a Labour Government took office. But what is not often realised is that the decision was made in secret by a Conservative Government. I have no objection to that. It was thought that it should be secret because we were not about to intimate to the Soviet Union that we did not think that our existing system could penetrate the Galosh defences around Moscow.
That decision then came before the Labour Cabinet and there was the correspondence between the right hon. Members for Blaenau Gwent (Mr. Foot) and for Chesterfield (Mr. Benn) about what did or did not happen at the Cabinet meeting in November. That is an important issue. I am on the side of the right hon. Member for Blaenau Gwent, if for no other reason than that I find Barbara Castle's diaries to be extremely accurate. I figure in a lot of them and her accuracy must be due to the fact that she had shorthand. I do not always agree with her conclusions, but in terms of an accurate description of what was going on in that period, I suspect that it will prove to be better than the Cabinet Secretary's, who did not take shorthand and had a tendency to make the minutes of the Cabinet meetings reflect the briefing that had gone to the relevant Ministers. More frequently, one used to read what one was meant to have said according to the briefing that one had been given rather than what one actually said. However, I leave all that, to come to a serious question. That decision was reported to the Cabinet, as it was right to do, because at that time the cost was about £220 million. It was agreed by the Cabinet and the programme went forward. There was no secret about that, because it was a continuation of previous Conservative Government policy. However, all the discussions were conducted in secrecy. In 1977, the decision came up for review by a small group of Ministers, which has often been criticised since. The reason that the decision came up before a small group of Ministers was that it had already been taken. The cost escalation was considerable. At that time, the question was whether the programme should be cancelled. That was considered seriously, because the cost by then was £700 million and the cost eventually became £1 billion.
One of the major arguments used against cancellation was its effect on the capability of our nuclear deterrent. It was felt that if one came forward and announced that one was cancelling a programme on which one had spent £700 million and which had been started to improve the penetration of missiles, one would flag to everybody--and very visibly to the Soviet Union --that one's existing deterrent was not effective. Nobody argued more strongly against cancellation than the Ministry of Defence and the intelligence community. They argued powerfully that it was absurd to cancel the programme, having spent so much money on it.
I was in two minds about whether we should cancel the programme. The anti- ballistic missile treaty had been signed by then, we were dealing only with the rather inadequate Galosh system around Moscow and I did not believe in the Moscow criteria. However, I found the arguments against disclosure extremely powerful and they were arguments that finally persuaded me. There was nothing disreputable or discreditable about the
Column 384Government deciding--the decision was made for them at almost technical level, as most classifications are--that this classification should be highly secret and that disclosure would be deeply damaging.
There was a change of Government in 1979. At the end of 1979 and beginning of 1980, the then Secretary of State for Defence--now Lord Pym in another place--came to the House and suddenly announced not only that the project was near to completion--which he was entitled to do--but that the project was called Chevaline. I remember hearing that announcement at the time and being utterly staggered that he could do that. On what authorisation did Francis Pym suddenly announce the name of the project? It was one of the most highly classified secrets of the previous 10 or 11 years. I presume that he decided to declassify it himself, rather as Winston Churchill declassified documents at frequent intervals. Whenever I have written on defence, I have frequently declassified information before I make a judgment. Lord Pym made a judgment. I believe that he did so for purely party political reasons to justify the decision to buy Trident missiles and to embarrass the Labour party for the fact that it had put the interests of this country first and had been ready at all times to modernise the deterrent--and it was right to do so. He made a cheap, party political point. In the process, he seriously damaged the principle of the integrity of the classification system and of the trust that had hitherto existed between Governments. That was a bad day for good government in this country.
However, Lord Pym made a judgment, and I presume that he would argue that he did not damage the capability of any part of the deterrent when he made that decision. A year before, however, if anybody had revealed Chevaline, a serious question would have been whether a prosecution should take place. That shows that two Governments, within a year, were taking completely different views on a serious question about capability.
The reason for that story is that it is necessary for the House to make clear what it believes is "damage". Damage is in the eye of the beholder. We should be clear that we are concerned with more than just damage, that we are concerned with serious damage. I would have argued that it was seriously damaging at any time to reveal that project until it had been fully deployed. I could not be persuaded that it was right to announce it. If people wanted to speculate about it, that was reasonable, but in such areas, it had normally been the rule that one did not reveal the full modernisation of weapon systems. The point is that the Secretaries of State for Defence--Fred Mulley, a man of the utmost probity and distinction, who always put the defence of this country first, and Francis Pym, to whom I apply the same terms--made fundamentally different judgments on that question.
How is a jury to make up its mind on such questions if the best that the House of Commons can do about what we think are the criteria is to replace the word "prejudices" the capability with "damages" the capability? The vignette of history points in the direction of greater clarity about what is at issue. One can argue the case that, as the weapons system is deployed, the importance of revelations about its effectiveness and capacity diminish. The further one is from deployment, the more it is important to keep it secret. It is a moving situation.
Column 385There has been a great deal of cynicism, which reflects the difficulty of establishing criteria here. We must say to the Home Secretary--I know that he is more worthy than anybody else--that we do not have sufficient explanation here. The words that are used in the Home Secretary's explanation for the Bill in the House of Commons cannot be used in a court of law. One cannot call in evidence the fact that the Home Secretary said that "damaging" really means "seriously damaging". I am not a great lawyer ; the Home Secretary has picked me up on that before. The words, therefore, in the Bill are very important. I hope that, having moved on prejudice, presumably having listened to the words of Sir Leon Brittan, he will now accept that if, as I believe will happen in the other place, the word "seriously" is inserted, it should not be removed.
Mr. Buchan : On the right hon. Gentleman's point about whether language spoken by the Home Secretary or anyone else can be called in aid, it cannot. The judge must interpret the law as it stands. The very fact that what is said in the House cannot strengthen a judgment means that if the clause is passed without the level of damage being qualified, it will be assumed it means any level of damage, however minor.
Dr. Owen : If that is the case, it does not fit easily with the rest of the clause. I must say to the hon. Member for Banbury (Mr. Baldry), who intervened and mentioned the tragic case of the ceremonial in Gibraltar, that there have equally been other ceremonials, such as the Horseguards incident, which would be covered by the words "loss of life." That is right and I do not think that any of us could object to that. The clause also refers to "injury to members of those forces or serious damage to the equipment or installations of those forces",
with which I have no problem at all. If we can use the phrase "serious damage to" for such matters, why on earth can we not use "serious damage" with regard to capability? The clause does not make sense.
In clause 3--I do not wish to prejudice any discussion on that clause--one sees the phrase :
"it jeopardises the interests of the United Kingdom abroad". Can we merely live with the words :
"a disclosure is damaging if--
(a) it damages the capability of, or any part of, the armed forces of the Crown"?
That is not a sufficient test on which to have someone up on a criminal charge and have them imprisoned. Yet that is what we are talking about for a range of information and classifications on which, as I have already said, two successive Secretaries of State can take diametrically different views, when the capability of the defence of this country is involved.