House of Commons Hansard Debates for 15 Feb 1989

Mr. Budgen : Does the right hon. Gentleman agree that what will actually happen when this Bill becomes an Act is that it will not be applied even-handedly, but the Government of the day will make an arbitrary selection?

Dr. Owen : Yes, and the matter will go before a jury, and we shall then see what we saw in the Ponting case. A judge will give a direction to the jury in law which will be totally chucked out because most of the jurors will have enough sense to realise that they are not prepared to pass judgment that makes them look like asses. That is the danger.

We all know that the last Official Secrets Act was one of the worst Acts that this House has ever passed. We have all hung our heads in shame because it was rushed

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through, because its interpretation was squalid, because all of us--in successive Governments--have kept it going for decades too long and because people have suffered gross injustice. However, such a Bill is now with us in this House. We have all been talking about historical examples, but we are probably on the path that is most likely to lead to the courts.

I feel strongly about clause 1 and about the small but important group of people who are employed in the security and intelligence services. I still think that we have got that provision wrong. Not providing a public interest defence for those people is a serious omission--we all know that defence information is being leaked all the time. This provision will come to court. It will be the issue on which people will go behind bars. There is a great feeling in the House that the current words are not sufficient. I hope that when the Home Secretary gets his way and moves that the word "prejudices" become "damages", he will accept that that is only a partial step and that we shall not rest until the word "seriously" precedes the word "damages".

Mr. Hugh Dykes (Harrow, East) : We have not only heard fascinating and subtle allusions and references to incidents 10 and even 20 years ago about major projects and the ways in which they ere eventually revealed ; we have heard a whole raft of extremely persuasive speeches from hon. Members of all parties urging my right hon. Friend the Home Secretary to accept this cluster of amendments.

I shall speak only briefly--I had not intended to speak--but I hope to make a helpful contribution. This is an opportunity for my right hon. Friend to accept the amendments and thus to do what he originally intended to do, which was to provide a firm, tangible definition of "serious harm" or "serious damage". That was manifestly his intention and that of his Department. I guess that that would be fully supported by the Law Officers, but one should not quote them without asking their permission or opinion-- only they could express it.

The House will have been drawn by the comments of the hon. Member for Caithness and Sutherland (Mr. Maclennan) about the background of the European convention on human rights in relation to the clause to which he referred. The present wording of clause 2--and especially the main part that we are now considering--is a disgraceful piece of drafting. I apologise to my ministerial colleagues for using that strong adjective. Increasingly in recent years, and irrespective of party colour and Government, the House has been worried about sloppy drafting of all sorts of Bills and the increasing tendency for such important measures to go through unamended because of the processes and pressures that we now face.

I say that against the worrying background that none of the provisions ever emanates from an outside committee of inquiry or investigation or a Royal Commission. We all dreaded Royal Commissions in the past because their deliberations took so long, but none of this legislation comes from such bodies. It all comes from internal governmental investigation, action, deliberation and suggestion. Because that process always emanates from internal Government sources, and because it reinforces the need for amendments to be made to reflect the will of the House, we are left with shoddy drafting. To use four

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different verbs in clause 2, dealing with the harm aspect, is unacceptable. I hope that my right hon. Friend will reconsider that. I feel strongly about removing the discretion of the quadrupartite basis of what we have been discussing today--the European convention on human rights--about the definition and basis of Franks, which is still held in the greatest respect by parliamentarians in this Chamber and in the Upper House, and by people outside as being the right basis on which to proceed, and about the amendments and the original terms and undertakings given in the White Paper and on Second Reading.

I do not agree with the reference of my hon. Friend the Member for Banbury (Mr. Baldry)--I hope he does not mind me referring to this--to the use of the word "harm", when he said that there is no way in which one can establish the right level of harm or damage because a ceremonial occasion might turn out to be a serious emergency causing injury and death. With respect, that was a distortion. My hon. Friend mixed up two totally separate manifestations of human action. I hope that, with all those arguments having been deployed, if my right hon. Friend the Home Secretary catches your eye later, Sir Paul, he will reply to some of those serious comments. I cannot understand why, in this mature parliamentary system, where there is no outside corrective constitutional court system to say that the Government are overdoing it, are going too far or do not have a mandate or basis for their argument, the Government cannot from time to time accept a good suggestion, even if it comes from the Opposition, or an amendment tabled by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd). I cannot understand why they will not accept his amendment and say that that is the basis on which they will proceed. Why is that regarded as a sign of weakness?

We are told nowadays that the regular meetings of the Cabinet are shorter and that most things happen in Cabinet or ministerial sub-committees and that there is little discussion because it wastes time. Then, when the measure comes to the Floor of the House, it is guillotined because, after all, it wastes time. Indeed, several hon. Members said that in Monday's debate on the guillotine motion. My right hon. Friend the Member for Chingford (Mr. Tebbit) said that we were wasting time considering such matters. I am sure that my right hon. Friend--

Mr. Budgen : Some tribute should be paid to the Government. They took away the right to silence in Northern Ireland by order, in three hours, without any discussion. Therefore, the idea that the Government are prepared to waste time in such fruitless activities is a totally false allegation. There is no evidence that the Government seriously believe in parliamentary discussion.

Mr. Dykes : On careful and meticulous reflection of what my hon. Friend has just said, I feel ashamed because he is right. I misunderstood the whole basis on which this new era is unfolding.

Mr. Gorst : My hon. Friend may be completely wrong about this. Having heard the weight of the argument, my right hon. Friend the Home Secretary may well, within a

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matter of minutes, be about to concede what we have been arguing, thereby earning a tremendous amount of kudos for this Government's handling of the Bill.

Mr. Dykes : I take the extremely subtle hint given by my hon. Friend the Member for Hendon, North (Mr. Gorst) that I should not go on for too long. I agree that there is now the chance of that happening, so the sooner my right hon. Friend the Home Secretary can address us the better.

I return to the point made by my hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen). The interdiction on Sinn Fein spokesmen appearing on radio or television was announced in the media. That was the quintessential example of not wasting time. As a summit of not wasting time, it was extremely impressive.

Mr. Winnick : Does the hon. Gentleman agree that he is doing no service to the Home Secretary? If the Home Secretary conceded anything, it is likely that he would be dismissed within about a week. Does not the hon. Gentleman care about the Home Secretary's continuing career?

Mr. Dykes : I care in all ways, but I care above all about my right hon. Friend's justified respect as a liberal Conservative politician-- although the right hon. Member for Morley and Leeds, South (Mr. Rees) asked, "Is he, or is he not?" Unless someone else, Sir Paul, catches your eye in the meantime, I think that my right hon. Friend the Home Secretary is about to rise to his feet to prove the hon. Member for Walsall, North (Mr. Winnick) wrong.

8.30 pm

Mr. Hurd : I hope that we do not start from the proposition that this clause substantially reduces the weight of criminal law on soldiers, sailors, airmen and officials of the Ministry of Defence. There is a wide discretion about prosecution, and that discretion will be substantially narrowed. The argument is about whether it should be narrowed even further.

The amendments would alter the basic structure of the Bill. The Government's approach, which differs from that of the Franks committee, has been to select from the whole mass of Government information that which needs to be protected, and then to define what that is in statute on the basis of whether disclosure of that information could do serious damage to the public. I have said that over and over again, and many members of the Committee have quoted that and other points accurately. We are removing from the scope of the criminal law the wide discretion that the prosecuting authorities--not the Government--have, and putting it first on Parliament and then with jurors. We believe that the criminal law should apply to harm that is serious. That is why the winnowing process has been rigorous. It has winnowed out not just the trivia but the Budget secrets and the kind of Cabinet documents to which the right hon. Member for Morley and Leeds, South (Mr. Rees) referred. Those will no longer have the protection of the criminal law. What is left to be covered by the Bill is a minority of the range of Government information at present protected by the law. Included in the Bill are such narrow sectors as interception warrants and other warrants, to which we shall come tomorrow, where we believe that disclosure per se is harmful--members of the Committee will want to argue about that-- or in other sectors where we ask Parliament to set a test of actual harm. We do not believe

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that within those sectors, which we are asking Parliament to select as sectors where disclosure can cause serious harm, there should be a test within a test. There should not be a subdivision within those sectors so that there is a subdivision of harm.

Mr. Rees rose --

Mr. Hurd : I will give way to the right hon. Gentleman in a minute. First, I should like to develop this case, which is the core of the argument.

It is true that the Franks structure was different, but it would be hard to argue that, on balance and on the whole, it was a more liberal one. I dislike the word "liberal"--I have never claimed to be a liberal Home Secretary and I know that when people describe me as one, they will say in the next sentence how tyrannical and Fascist I am being. Nevertheless, it is hard to argue that the Franks structure is more open or liberal. One cannot pick out a particular building block from the Franks structure without reference to the building of which it is part. Franks recommended the test of serious injury or harm to the interests of the nation, but did so within a framework entirely different from that which we are suggesting. The essential link here is not with the classification of documents but with ministerial certificates.

Franks suggested that the range of sectors to be protected by the criminal law should extend across the board, including many sectors that are now to be liberated. He also suggested that the Minister should have the last word as to what was or was not serious damage. Our approach is different. It is to restrict drastically, compared with Franks, the range of information that can be protected, by eliminating whole sectors where it might be argued that there was serious damage but where we do not think that there could be, and to ask Parliament to define tests, leaving the jury to decide. The Franks philosophy would lead to a wider scope for the criminal law than we propose. It is hard to apply that philosophy and the wording about serious damage without taking that into account.

The reference by my hon. Friend the Member for Hendon, North (Mr. Gorst) to our instructions for the jury was a little strange. It is a shame that neither my hon. Friend the Member for Orpington (Mr. Stanbrook) nor my right hon. Friend the Member for Chingford (Mr. Tebbit) is here, as both have chided me for showing a naive trust in juries and getting away from the system of ministerial certificates.

Mr. Gorst : I should be happy to withdraw my suggestion immediately if my right hon. Friend would only make a distinction between serious and ordinary damage.

Mr. Hurd : I have tried to explain our reasons for adopting the different approach of asking Parliament to define and not allowing the test of serious harm to apply across a much wider board.

Mr. Rees : I agree with much that the Home Secretary has said about the difference between the Franks recommendations, classification and so on, but we are talking about section 2, which concerns defence. The Franks report dealt specifically with this and said that material that would not cause serious damage should not be covered. Will the Home Secretary apply this to section 2 rather than to the wider aspects of the Bill?

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Mr. Hurd : Under the Franks recommendations, the Secretary of State for Defence would be the judge of that. That is a substantially different view from ours.

Mr. Budgen : I genuinely disagree with some of my hon. Friends, and I admire my right hon. Friend's wish to submit these judgments to a jury, but is there not a danger that the decision to prosecute will be arbitrary and political? If the Government simply have the test of whether it is dangerous or damaging, rather than seriously so, when a particular Minister feels that his amour propre has been pricked he will be anxious to prosecute the very person responsible. Very often, less serious matters will be left unprosecuted. It is wrong that the criminal law should be subject to such a political decision.

Mr. Hurd : I have not often wished that my hon. Friend could become a Law Officer of the Crown, but I wish so now. As many hon. Members know, that is not the way in which decisions to prosecute are taken. We propose a system which is much less political and arbitrary than one in which the crucial document is the ministerial certificate. Ministers are out of the process once Parliament has approved the Bill.

Mr. Richard Shepherd : There is universal approval--apart from my right hon. Friend the Member for Chingford (Mr. Tebbit), who will be tabling his own amendment--for reverting to the jury system. After all, cases arising under section 1, which is about espionage, treason and the most damaging sorts of information, have always been in front of the jury, so my right hon. Friend the Home Secretary is reverting to a process that many of us believe is appropriate for our constitutional and legal arrangements. That is to be applauded, but why does he now back off and say that it follows from that that the test should be only "damage" and not "serious damage"? My right hon. Friend is not addressing himself to the distinction between the two.

Mr. Hurd : I am addressing myself to the innumerable comparisons with the Franks report, one of which was made by my hon. Friend. .

The hon. Member for Caithness and Sutherland (Mr. Maclennan) and my hon. Friend the Member for Harrow, East (Mr. Dykes) both mentioned the European convention on human rights, and we have looked into the matter. I do not believe that we shall run into difficulty on that, and if there is any, it will be much less than there is under the present law. My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) was a little scathing. Like my hon. Friend the Minister of State and myself, he is a layman, but we take legal advice on legal matters and when that legal advice and what we say is challenged, we reinforce it as best we can. My hon. Friend was therefore a little harsh on that point.

Mr. Foot : The Home Secretary continues to refer to advice from the Law Officers. Does he not recall that time and again in this debate we have asked that the Law Officers should be here? I cannot recall when we have asked that the Law Officers be present to answer debates or discuss matters over which there is great confusion when they have not been summoned. Previous Administrations have always been prepared to summon them. Why have they not been summoned to these debates?

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Mr. Hurd I rest on what I said about the process by which Ministers obtain and then, if necessary, reinforce legal advice. The right hon. Gentleman may shake his head, but he has been in this position himself. He knows what happens and he knows all about the role of the Law Officers.

Mr. Higgins : I recall vividly an occasion when the late brother of the right hon. Member for Blaenau Gwent (Mr. Foot) appeared before a Finance Bill Committee. We had been up all night, but he had not. He delivered a long oration about the Law Officers' opinion. Surely there are many precedents for Law Officers giving a view. On a more substantive point, are we to understand that every time there is thought to be damage within the context of this clause, no matter how trivial, the prosecution will proceed?

Mr. Hurd : Of course not. My right hon. Friend was right in his first point. There are many precedents.

Mr. Hattersley : With regard to the question raised by the right hon. Member for Worthing (Mr. Higgins), does the Home Secretary understand- -because this is at the heart of our discussions--that we are not concerned with assurances that the Government will not prosecute? We are not here to read the Government's mind and intentions. We want a provision in the Bill to make trivial prosecutions impossible. The Home Secretary must consider that.

Mr. Hurd : I shall come to that.

Mr. Budgen : Are we to understand that the question whether a prosecution should take place will depend not on whether the case is serious, but on whether in an arbitrary or somewhat detached way the Attorney-General decides to prosecute?

Mr. Hurd : It will be carried out in the usual way. Whereas the prosecution authority has just about absolute discretion under the present law, under the terms of the Bill it will be restrained within the tests of harm.

The wording is very important. I do not deny that. It is right that ministerial statements and press releases are not relevant. We started with the word "prejudices", which is in the White Paper. The points that have been made suggest that that might be taken as setting the test of harm at a lower level than we intended. Government amendment No. 86 is intended to remove that concern and has been welcomed today. It is one of the few propositions before the Committee which has unanimous support.

My hon. Friend the Member for Banbury (Mr. Baldry) dealt with the point about trivia raised by my hon. Friend the Member for Thanet, South (Mr. Aitken). There was a prosecution in 1916 under the Official Secrets Act 1911. I cannot conceive of any demented prosecuting authority which would suppose that that case damaged the capability of the armed forces. I would say the same about the Smith's lawn example referred to by the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley).

The right hon. Member for Sparkbrook referred to corruption at a royal ordnance depot. I cannot understand how that revelation could damage the depot's capability. I can understand why the corruption could damage it, but we are concerned with the revelation. On the basis of the example, there would be no likelihood of the depot's work being disrupted or that it would be possible to prove that as a result of the disclosure the capability of any part of the

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armed forces would be damaged, let alone prove that the person making the disclosure knew or had reasonable cause to believe that that would happen. It would be impossible for the prosecution to act in the trivial examples which have been suggested today.

The hon. Member for Paisley, South (Mr. Buchan) raised a different point. I am sorry that I was slow--

Mr. Buchan : The Home Secretary certainly was slow.

Mr. Hurd : --in teasing from him exactly what he was talking about. He explained himself very clearly after a while. In practice, he is doing less than justice to the arrangements between the Ministry of Defence and the local authorities in his area. Those arrangements ensure that the circumstances which he described could not occur. The contingency arrangements are available to the public and there is no question, as I understand it, of a leak being kept secret. 8.45 pm

Mr. Buchan : The Home Secretary corrected me and said that Windscale was not a defence matter and therefore did not come under this clause. He is wrong. It was producing plutonium. That is why the leak was kept secret- -so as not to offend the Americans. That falls foul of the next clause. The Home Secretary said that it could not occur, but it did. That was the point that I was trying to make. No assurances have suggested that if the leak occurred on the Clyde it would be made known. There is no reason to assume that. Most importantly, if we leave the definition unqualified and it is left to the Government to intervene and decide when a case should be brought, or if it is left to the law, the law will follow on a low level of intervention.

Mr. Hurd : The hon. Gentleman directed me away from Windscale to his worries about the Clyde. I have dealt with those. His local knowledge is greater than mine, but I am advised that the contingency arrangements and the public nature of those arrangements make the case that he describes impossible.

The hon. Member for Paisley, South was right about the Bill. I concede that it would not be possible to defend a disclosure which could damage the capability of the armed forces on the grounds that there was a wider public interest. That is perfectly true. That is the argument for a public interest defence which he deployed earlier. I do not believe that it is sensible or safe to allow damage to be done to the capability of the armed forces and then to argue later, once the damage has been done and is irreparable--once the horse is out of the stable--whether there was some other justification which the defence might argue. The harm would have been done past recall and the lawyers would be arguing whether there was justification. The right hon. Member for Sparkbrook referred to my comments in Cambridge. We may have an opportunity to refer to that again in better order. I will gladly do so because my points were just. It is not right for the Committee to provide that harm, however drastic, could be done and later question whether the misconduct of other officials, however trivial, could be used as a justification. That is not safe or sensible.

Mr. Hattersley : The Home Secretary should begin to tell us what the Bill says rather than what he hopes it says. He refers to harm having been done beyond recall, but the

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clause refers to harm that is likely to be done. It is an hypothesis of harm. The idea that harm has been done beyond recall is wrong. It is appalling for the Home Secretary to say that that appears in the Bill when it does not.

Mr. Hurd : I was harking back to the public interest defence, where it would be perfectly possible under the Opposition amendments for irreparable harm to be done before there was any question of justification.

My hon. Friend the Member for Aldridge-Brownhills made an important point about the definition of the tasks of the armed forces. Although he did not make the point, we used language in the White Paper which is very similar, or perhaps identical, to his amendment. We tried to see whether we could use the concept of defence tasks in the definition of harm. The trouble is that we were advised that that would not ensure that the unauthorised disclosure of information about the capability of our armed forces in Northern Ireland could be protected. Our forces are not there defending the kingdom against external attack--they are properly and necessarily there in aid of the civil power. As a matter of law, it would not be clear that a reference to defence tasks, which might otherwise be a tempting answer, covered such a situation. I am sure that, for the reasons that have been given, the Committee would not want to accept an amendment which had that unintended effect.

The hon. Member for Caithness and Sutherland also put his finger on a point that the Committee should consider. We considered very carefully whether one could disentangle the different tasks of the armed forces, and separate their ceremonial, catering and certain other functions from the sharp end. We came to the conclusion that that could not be done sensibly, responsibly or coherently.

Mr. Maclennan : The right hon. Gentleman tries to dismiss as irrevelant or already taken care of my point concerning the European convention, but it does not have an escape clause dealing with the armed services. The convention deals with national security, territorial integrity and public safety--that is the "serious injury" that we are trying to import into the Bill. The Home Secretary says that he has thought about that aspect and has taken it into account. He does not have to rely on my interpretation of the convention. The view is widely held among academic and practising international lawyers that the Home Secretary has got it wrong.

The right hon. Gentleman says that he has taken advice, but I ask him to reconsider. A committee under the chairmanship of Lord Deedes specifically examined the matter, as did many international lawyers--including the late Paul Sieghart, who was a great expert in the matter. They all considered that the Bill's provisions are wrong and will land us back in the European court. The right hon. Gentleman constantly asked the Committee to accept his word that the Bill is all right, but it is not all right and anyone who considers the matter carefully knows that it is not.

Mr. Hurd : That is why I intervened to ask what news there was of trouble under the existing law. The hon. Gentleman admitted that he had none because it takes so long to get a case to court. I shall do what I told my hon. Friend the Member for Harrow, East that I would do : I will reinforce the advice that I have received and return to

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the matter before the Bill leaves this House. I rest my case on the advice that I have received, which I believe to be correct. My hon. Friend the Member for Thanet, South (Mr. Aitken) asked about the sale of defence equipment. Defence sales are not included in clause 2(4) and I do not think that they could be brought into it. My hon. Friend the Member for Torbay (Mr. Allason) was worried about notification, but as he is not in his place it will be more sensible to write to him.

Listening to the historical analysis given by the right hon. Member for Devonport, I was puzzled. He told us the Chevaline story and explained how two Secretaries of State in different Governments, but within a reasonably short time of one another, took fundamentally different views of what they could properly authorise themselves to disclose. I do not see how that is relevant to clause 2 as that problem, dilemma and difference of judgment would have occurred whatever might have been the law relating to unauthorised disclosure.

Dr. Owen : The point is that clause 2(2)(a) uses the words : "prejudices the capability of, or of any part of, the armed forces".

So of course different judgments could be formed. But if the subsection used instead the words "seriously damages", that will not be so. Throughout his speech today, the Home Secretary has constantly invoked, as he has in speeches throughout the country and in press releases, the phrase "serious harm". Is he suggesting to the Committee that his new wording,

"damages the capability of, or any part of, the armed forces", is the same as "serious injury"? Is the right hon. Gentleman justifying that argument under the overall rubric, which he says he supports but refuses to write into the Bill, of serious injury?

Mr. Hurd : The right hon. Gentleman buttressed his case with a long and fascinating anecdote about Chevaline, but that concerned whether or not authorised information should have been authorised and has nothing to do with the Bill, which concerns unauthorised information, so the right hon. Gentleman's argument is irrelevant.

Running through these and many other amendments is an unbalanced approach to the Bill. It is dominated to the exclusion of other particulars by one particular type of case and one particular type of individual--the aggrieved or anxious public servant who wishes to disclose malpractice. We have heard about him time and again, day after day and hour after hour. Such individuals do exist from time to time, and may exist in the future. That is why we need safeguards, channels of complaint and staff counsellors --and they are being provided. But there has not been a word of acceptance, except from the right hon. Member for Morley and Leeds, South and, most recently, from my hon. Friend the Member for Aldridge-Brownhills of the damage that disclosure can do against protection of the citizen.

Mr. Richard Shepherd : I shall be worried if my right hon. Friend sits down without explaining why it is that he has used all around the country, and in this House, the words "serious damage"--serious, serious, serious, yet in his response to the debate, he has not addressed himself to the question why the word "serious" cannot be used in the Bill.

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Mr. Hurd : I spent the first five minutes of my response doing so. I shall not repeat that explanation, because I do not wish to hog the last few minutes of the debate. However, If my hon. Friend reads the first five minutes of my reply, he will find a careful analysis of why we did not follow up the road after Franks with the definition of serious damage.

Mr. Shepherd : But you said that you did follow Franks.

Mr. Hurd : No, we have never said that we followed Franks. We said that we asked Parliament--not the Government--to select areas where disclosure would be serious. We asked Parliament to define them and to include them in the Bill, so that a jury could decide on individual cases. That is the whole basis of our approach. The amendments deal with damaging the capability of those on whom the defence of the country rests. It is not a minor matter. A person disclosing such information can never be certain how much damage he will do. In our view--here we are talking about defence- -it is enough that a disclosure made by a person knowingly seeking to damage the capability of the armed forces should attract, in this instance, the sanction of the criminal law. The right hon. Member for Sparkbrook was right to say that lives depend on the legislation--and lives should not be jeopardised by a loose definition.

Mr. Hattersley : I have four minutes in which to deal with the Home Secretary's attempts to answer the debate--to describe his speech in the most charitable light.

I emphasise again that, since Franks, there has been a major change in the way in which the law is to be implemented. We know that the certificate has gone, but that is not the issue for debate. The issue is that, according to clause 2, the Government can prosecute, with reasonable certainty of success, anyone who reveals information about defence matters that cause harm, as defined in the clause. The clause defines harm as anything that deflects the armed forces from carrying out whatever task they choose to carry out. The Home Secretary may argue that trivial matters deflecting the armed forces from carrying out their tasks will not be the subject of prosecution, but that is not an adequate reply to a debate in Parliament, when

parliamentarians naturally want protection against such prosecutions written into the Bill.

If the right hon. Gentleman believes that the Ministry of Defence will not prosecute when others believe that prosecution would be appropriate, he misunderstands the mentality of the Ministry of Defence over the years. The hon. Member for Thanet, South (Mr. Aitken) was over-generous in accepting the point made by the hon. Member for Banbury (Mr. Baldry) that in the case of the quotation for fly buttons no prosecution would be possible because such a disclosure could not be said to harm the armed forces. I know from my years in the Ministry of Defence that somebody might say that the revelation itself undermined the morale of the armed forces, and that it left the armed forces open to ridicule. The reasons for prosecution will always be found if prosecution is possible. What the Home Secretary does not seem to understand is that we are not satisfied with assurances that it will not happen : we want the Bill to be specific in preventing trivial and unreasonable prosecutions. The Home Secretary says that he cannot include the word "serious". He does not like the concept or the

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definition. But the Bill is littered with examples of the word "serious" when it is convenient for the Government's purposes. We are left with a final point which must, I think, be the last word before the untimely conclusion of our debate. The Government have persistently toured the country and said publicly--and the Home Secretary has slipped into the habit of implying it from time to time in debates in the House--that there is a serious test of harm : that the national interest is the criterion against which prosecutions are measured. That is not the case, and the right hon. Gentleman does himself and his cause no good by pretending one thing outside the Chamber and another inside it.

More important, because of the sloppy wording of the Bill, some prosecutions will be mounted and will hold the Government up to ridicule. Some of us will not lose many hours' sleep over that, but it is just possible that some who by normal standards are adjudged innocent will be convicted and sent to prison because of sloppy wording. It is no wonder that not one Member on either side of the Committee has spoken in favour of what the Home Secretary now proposes, and it is no wonder that there will be a substantial vote for the amendment. I am sure that the Home Secretary will get his own way thanks to his supine Back Benchers, but the House of Lords--if it understands its function--will want to lessen the damage that he is doing.

Mr. Baldry : On a point of order, Sir Paul. The right hon. Gentleman has just--

The First Deputy Chairman of Ways and Means (Sir Paul Dean) : Order. I am now required to put the Question.

It being Nine o'clock, The Chairman-- proceeded, pursuant to the order [13 February] and the resolution this day, to put the Question already proposed from the Chair.

Question put, That the amendment be made :--

The Committee divided : Ayes 183, Noes 286.

Division No. 96] [9.00 pm

AYES

Abbott, Ms Diane

Aitken, Jonathan

Allen, Graham

Anderson, Donald

Armstrong, Hilary

Ashdown, Rt Hon Paddy

Ashley, Rt Hon Jack

Ashton, Joe

Banks, Tony (Newham NW)

Barnes, Harry (Derbyshire NE)

Barron, Kevin

Battle, John

Beckett, Margaret

Beith, A. J.

Bell, Stuart

Benn, Rt Hon Tony

Bermingham, Gerald

Blair, Tony

Boateng, Paul

Brown, Ron (Edinburgh Leith)

Bruce, Malcolm (Gordon)

Buchan, Norman

Buckley, George J.

Caborn, Richard

Campbell, Menzies (Fife NE)

Campbell, Ron (Blyth Valley)

Campbell-Savours, D. N.

Canavan, Dennis

Carlile, Alex (Mont'g)

Cartwright, John

Clarke, Tom (Monklands W)

Clay, Bob

Clelland, David

Clwyd, Mrs Ann

Cohen, Harry

Coleman, Donald

Corbett, Robin

Cousins, Jim

Crowther, Stan

Cryer, Bob

Cummings, John

Cunliffe, Lawrence

Cunningham, Dr John

Darling, Alistair

Davies, Rt Hon Denzil (Llanelli)

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

Dewar, Donald

Dixon, Don

Dobson, Frank

Dunnachie, Jimmy

Dunwoody, Hon Mrs Gwyneth

Dykes, Hugh

Eadie, Alexander

Eastham, Ken

Evans, John (St Helens N)

Ewing, Harry (Falkirk E)

Ewing, Mrs Margaret (Moray)

Field, Frank (Birkenhead)

Fields, Terry (L'pool B G'n)

Fisher, Mark

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