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Clause 3
International relations
9.15 pm
Mr. Corbett : I beg to move amendment No. 10, in page 3, line 19, leave out damaging disclosure' and insert
disclosure which would cause serious injury to the interests of the nation'.
The First Deputy Chairman : With this it will be convenient to consider the following amendments : No. 11, in page 3, line 28, leave out damaging' and insert one which would cause serious injury to the interests of the nation.'.
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No. 26, in page 3, line 30, leave out jeopardises' and insert causes serious injury to'.Mr. Corbett : This is another important part of the Bill which deals with information relating to other Governments and organisations. Earlier, the Home Secretary said, in the context of the test of serious injury, that the Government were not relying on the Franks report. I do not think that he meant that completely. The Franks report--this is useful background information--says in paragraph 127 that a
"democratic government should not use the plea of secrecy to hide from the people its basic aims and policies, in foreign any more than in domestic matters."
It also states--this harks back to the previous debate--that there should be a test of serious damage in relation to the disclosure of information given in confidence to this Government by other Governments and international organisations. We know from the way in which the Bill is drafted that those aims are not met.
The Franks report states in paragraph 126 :
"A great deal of what is going on between governments and in international organisations is public knowledge, contemporaneously or nearly so. Such knowledge serves the public interest, and is essential to an adequate measure of democratic control over the conduct of the country's foreign policy."
It is important that we keep both those statements made by Franks in the back of our minds during this debate.
The clause proposes an offence which is not even within the present Official Secrets Act. If the disclosure relates to an absolute offence, any repetition of the information here, however widely known it may be internationally, would be an offence. That is an aspect of the prior publication argument to which we shall come later. The Bill creates a new offence. It is difficult to see how sending British journalists to gaol for repeating what their overseas colleagues have already revealed will help international co-operation.
As in so many other parts of the Bill, all this turns upon the Government's refusal to acknowledge the need for a test of serious injury. There remains a suspicion on this and other clauses that the Government are concerned mainly with saving their face with other Governments or international organisations and, in the process, are denying access to information which cannot do any real damage. The "any harm" test is that disclosure is likely to jeopardise the interests of the United Kingdom abroad. That is an exceptionally wide net. Clause 3(3) makes it clear that jeopardy may result not from any real or imagined damage but simply because there has been a breach of confidence regardless of its contents or nature. It is that to which we object. The Home Secretary was open on that point. On 21 December he told the House :
"the fact that a confidence has been broken may jeopardise our interests abroad as much as the content of the information which has been disclosed." --[ Official Report, 21 December 1988 ; Vol. 144, c. 460.]
That is what I meant when I said that the Government were more concerned with saving their face than with any possible or potential damage which the disclosure of even trivial information may bring about.
This means that, under the Bill, revealing unimportant information supplied to Britain in confidence would be an offence. Even more bizarrely, to do so would be an offence even if the information were not explicitly given in confidence. In other words, if the donor Government--if
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that is the right way to describe them--did not say, "Keep this confidential, please," but the understanding was such that there was a reasonable expectation that it would be held in confidence, to reveal the information would still be an offence. While I understand that, how is any journalist to know whether confidence was explicitly or implicitly understood when the information was transferred from another Government or international organisation to this Government? He or she could not possibly know.The subject matter of the information would be no guide. As we know, under this clause the breach of confidence is enough to risk prosecution. How could any journalist possibly know how an international organisation or foreign Government giving information to the British Government are likely to react to the publication of that information?
If there had been a series of leaks of other Governments' information, a final, on the face of it seemingly trivial--though none the less interesting--leak, might be the final straw that would provoke prosecution under this clause. The journalist or editor--or editorial lawyer, for that matter--would have no way of knowing that, and would remain uncertain, despite the Home Secretary's declaration in the White Paper that the intention behind reform of the Official Secrets Act was that everyone should be clear about the risks he was taking.
The Bill deals not with nominated categories of information but with information of any kind that is given in confidence. It is difficult to imagine a more secretive Government than this one, but I suppose that such a thing is possible. Under the Bill, the net covering information is too wide. It should be restricted to sensitive matters whose disclosure would cause serious injury, and it should not include the tons of paperwork floating endlessly out of Brussels.
We agree absolutely that, in high-level, confidential negotiations between Governments or between Governments and inernational organisations, it does no good to the chance of an agreement to engage in foghorn diplomacy. We acknowledge that, and no hon. Member would contest it. The Government, however, do not propose to cover only that sort of information. The clause applies to any paper anywhere that has been handed from one Government to another, in either stated or implied confidence.
The European Community is of enormous interest to us. It is unlike any other international organisation with which we deal, because it increasingly--
The First Deputy Chairman : Order. I am sorry to interrupt the hon. Gentleman, but he is straying into the next group of amendments. I realise that it is not easy to separate the two groups as they are, to some degree, connected, but the remarks that he is now making should more properly be addressed to the next group of amendments.
Mr. Corbett : I am grateful to you, Sir Paul. You have put your finger on one of the problems of labouring under the guillotine--it means that we try to telescope our remarks. I shall take your advice.
Amendment No. 10 shows our disapproval of the Government's blunderbuss approach to information and documents exchanged between Governments.
This should be approached, as Franks recommended, in a more selective manner. We appreciate the need in
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relations between Governments to keep certain things secret, but we support the Franks concept that this protection should apply only to leaks which are likely to cause serious injury to the public interest. That is the test we want applied. Because the Government refuse to make this distinction, the result could have draconian effects on the public in diminishing their right to oversee what is being done in their name in the sphere of foreign policy.Mr. Budgen : Who should make the selection? I contend that in our democracy, selection should be made by the words of the legislature and not by the discretion of the Attorney-General, for his discretion should be exercised in a non-political way.
If at any time in the future we had a Prime Minister who prided himself or herself on having rejected consensus and who said that he or she did not wish to have too much discussion in Cabinet and who wanted most of all to demonstrate his or her overwhelming and dictatorial power over the Cabinet, it is possible than an Attorney-General might feel that the choice of the selection of who should be prosecuted might be dictated by political reasons. That would lead to unpleasant consequences. We have already seen under the old legislation that a young man, one Jonathan Aitken, was prosecuted at the Old Bailey for alleged offences under the old Act, whereas a right hon. Gentleman, the late Hugh Fraser--who was, if the prosecution case was right, equally guilty of the offences--was not prosecuted. That was a decision of the Attorney-General.
If a future Prime Minister who rejected consensus and who decided under our unwritten constitution that the process of Cabinet government was not something with which a radical Prime Minister wished to have any truck, an Attorney-General might make selections. I assert that our criminal law should be based on the proposition that everybody who has broken the law should be prosecuted. It should not be based on the proposition that there is wide and loose legislation which is then used selectively by the Attorney-General of the day. It is that last proposition on which the Government rest their case. They say, "We are reasonable men. We shall always operate this legislation on a reasonable basis."
I must tell my right hon. and hon. Friends, although they might find this deeply disloyal of me, that we are not legislating for Tory Governments. We are legislating for all Governments. We are not producing "Maggie's law". This is the law of the land, the law which is likely to be brought into effect in the future by a Labour, Communist, SDP or Liberal Government. We want to be absolutely certain that our citizens' rights are properly safeguarded under the law of the land. We are not here just to have a bland assertion by a Tory Member or by a Tory Home Secretary, speaking to his own kind, that we can be certain that we will approve of the discretion. 9.30 pm
Mr. Ray Whitney (Wycombe) : I accept that we must legislate against the awful possibility that a Government of a complexion which my hon. Friend described may one day sit on these Benches. Having allowed for that, would not my hon. Friend agree that the wording of the clause puts the onus on the court and that therefore it is the court
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which will decide whether the national interest has been damaged by a damaging disclosure? Is not that the safeguard which my hon. Friend seeks?Mr. Budgen : The safeguard that was relied upon in the last debate, which was unfortunately truncated because many of our hon. Friends wanted to get to bed early, was that all these matters would be dealt with by the Attorney-General of the day, who would be a Tory Attorney-General. Leaving the criminal law to the discretion of the Attorney-General is an unsafe way of proceeding. If the Committee believes that a narrower discretion should be vested in legislation and not in the Attorney-General, that would be a proper way of proceeding.
Mr. John Patten : There are in the Committee some distinguished right hon. and hon. Gentlemen who have served in the Foreign Office. I have never served in the Foreign Office. Perhaps we will have the benefit of their advice about international relations.
I will give the benefit of my advice to the hon. Member for Birmingham, Erdington (Mr. Corbett), who suggested that there was a new offence in regard to foreign confidences. There is nothing which it is an offence to disclose under clause 3, as drafted, which it is not already an offence to disclose under section 2 of the Official Secrets Act 1911. The big difference, as expressed in the Bill, is that no disclosure is an offence under clause 3 unless the prosecution can prove that the test of harm can be met. I simply disagree with the hon. Gentleman on the point that he made. On amendments Nos. 10 and 11 in the names of the hon. Gentleman and his hon. Friends, I will not follow him on some of the points that he made about foreign confidences because you, Sir Paul, have already drawn it to the attention of the Committee that in the interests of good order and debate we must leave those issues for later amendments.
We have already discussed similar amendments to clause 2. As drafted, the amendments would not have any great effect on the Bill. They would simply insert declaratory words which would not affect the tests of harm as we have provided them. My right hon. Friend the Secretary of State has already pointed that out in an earlier debate.
Amendment No. 26, in the name of my hon. Friend the Member for Aldridge- Brownhills (Mr. Shepherd) and other hon. Members, relates to a separate issue from the test of harm in clause 3(2)(a) and suggests that the test should be serious injury and not jeopardy. We have taken the proposition that the Bill must penalise disclosures of official information which cause a degree of harm so that the protection of the criminal law is required. Much of the debate on the last group of amendments revolved around the issue that my hon. Friend took up with the Secretary of State over harm and serious harm. I rest what I say on what my right hon. Friend said so clearly in the last debate.
Mr. Richard Shepherd : I am charmed by that response, but we were frustrated because we did not get an explanation from the Home Secretary. We are still waiting for it. We hope that my hon. Friend will address his mind to the question of serious harm. My right hon. Friend the Home Secretary gave us a diversion on Franks but did not
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address himself to the issue of why, although he uses the word "serious", as does my hon. Friend, when talking about the matters in Committee and outside, he cannot incorporate it in the legislation. We still do not know the reason.Mr. Patten : I think my right hon. Friend explained with admirable clarity in the first five minutes of his speech
Several hon. Members rose --
Mr. Patten : I am just beginning to reply to my hon. Friend the Member for Aldridge-Brownhills, and I will attempt my own suggestions about the level of harm. When I have given my explanation, I will give way, but I will give it in full if I may.
The Government would not be legislating on these matters if they did not think them sufficiently serious to require the protection of the criminal law. If we did not think that they were serious, we would not be suggesting that issues such as we have been discussing today should require the protection of the criminal law. That is the guiding principle that governs the intervention of the criminal law. It applies in this Bill as much as in anything else. As an interested layman, I have always understood that the criminal law comes into play when we need to protect the public interest from harm.
Mr. Budgen : Will my hon. Friend give way?
Mr. Patten : If I may, I will finish my argument, and then I will, of course, give way.
The general proposition must then be translated into terms that are relevant to the particular matters that the criminal law is to protect under a particular piece of legislation. I do not think that Parliament can just leave it to the jury to decide on culpability under the criminal law on the basis of some very general declaration of serious injury to the public interest. Parliament must say what it means. This Bill invites it to do so, and that is what my right hon. Friend was saying.
Mr. Richard Shepherd : If my hon. Friend casts his eye over the clause, he will see that it includes the words "seriously obstructs". If his criticism of what we are saying is wholly appropriate, when it comes to the Government's view on the matter it is also wholly appropriate. The Government are prepared to incorporate "seriously obstructs" in the Bill, but are not prepared to insert
"would cause serious injury to the interests of the nation". Why?
Mr. Patten : That is where the difference is between jeopardising and seriously obstructing in terms of international relations. Serious obstruction would be some breakdown in international relations, caused by unauthorised disclosure, leading perhaps to a substantial number of our staff abroad being sent home. That would seriously obstruct the work of the service.
Mr. Budgen : The Government recommend to us that the legislation should be passed in a wide and loose form because it is subject to the discretion of the Attorney-General. The Attorney-General is a lawyer, and the Government say that all lawyers are wonderful and that all Attorneys- General are especially wonderful and are in no way subject to any of the vulgar political pressures to which lesser mortals may be subject.
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Mr. Patten : I take my hon. Friend's point about the role of the Attorney-General. It is a very important point, and I will come to it specifically later in my speech, where, in any event, it seems to fit in.
I do not think that my hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen) was right to say at any stage that my right hon. Friend had talked during the last debate about a widely or loosely drawn Bill. I do not think he will find those words anywhere in the Official Report ; that was my hon. Friend's interpretation.
Sir Ian Gilmour : Of course, the Committee is extremely stupid-- there is no question about that, because virtually every Member was quite unable to notice that my right hon. Friend had given an explanation why the Bill could refer to damage or injury but not to serious injury. I am still quite unable to understand my hon. Friend's explanation. As I understand it, what he is saying is that it is all right for the Government to say that the provision should refer to serious harm or serious injury, but that it is not all right to say that that is what the jury should think. That seems to me to be the distinction that he is seeking to draw. Will he, on reflection, agree that it is not a permissible distinction?
Mr. Patten : I do not think so. It will be up to the jury to make up its mind. Every hon. Member has recognised that that is a good thing. Let me try to answer my hon. Friend directly by suggesting that it is necessary to recognise the distinction between saying that damage to the capability of the armed forces is a serious matter--my right hon. Friend's mind may be on such a point since that was the great issue in previous debates--and saying that only serious damage to those services is serious. Both are matters for serious debate, and we have had serious and welcome debate this afternoon. But no one can say that the first point of view, to which my right hon. Friend the Home Secretary and I adhere, is not coherent and legitimate even though it differs from the views of my right hon. and hon. Friends.
Mr. Foot : If the Minister is so clearly arguing, as he thinks to himself, that the word "seriously" was rightly omitted when we discussed the previous clause, does he agree that on the same logic the word could be removed from this clause? Would that alter the sense of the clause? If it would, why is it not in the other clause?
Mr. Patten : I have already explained that point in reply to an intervention by my hon. Friend the Member for Aldridge-Brownhills. I fear that I am straying a long way from the matter of international relations. Let me give an example to show why I think that the Government's provision is necessary and why the amendments would not be helpful. Britain might be relying on the support of a state in some international forum on whose deliberations our trading rights would in future depend. If there were an unauthorised leak of information, on the next occasion that we looked to that state for support we might look in vain. But at the time when the person who made the disclosure came to trial we might never have had an occasion for the state to show its hostility in a concrete fashion. All that it would be possible to show is that identifiable United Kingdom interests had been put at risk because they were jeopardised by disclosure. The prosecution, dealing with the amendment rather than
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other matters, would have to show that both the interests and the risks were real, and it would be for the jury to decide whether it accepted the prosecution's evidence.Here I come to the important point raised by my hon. Friend the Member for Wolverhampton, South-West about the role of my right hon. and learned Friend the Attorney-General. His role is specifically set out in clause 9, which we shall debate tomorrow. The answer to my hon. Friend's question is contained within the clause. The amendments do not define or relate sufficiently closely to the kind of harm that can arise in international relations, the nature of which means that it can sometimes be impossible to point to immediate and concrete harm. That is the difference between me and my hon. Friend the Member for Aldridge-Brownhills, and, indeed, between us and the Opposition. That is why the amendments cannot be accepted.
Sir Peter Blaker (Blackpool, South) : My hon. Friend will agree that the phrase
"the interests of the United Kingdom abroad"
goes wide. Will he say a word about how those words are to be defined and who is to do the defining?
Mr. Patten : The United Kingdom's interests can be defined by reference to the concept of jeopardising. That is where we have to start-- not with some general portmanteau definition of "interests", but with what damage can be caused to our interests. "Jeopardising our interests" is the right phrase to use because it properly reflects the possibly long-term but still real and serious nature of the harm which a disclosure in the area of international relations could cause Britain's interests abroad and which would be protected by the criminal law.
We are seeking a definition of our interests and I say to my right hon. Friend the Member for Blackpool, South (Sir P. Blaker) that it is not a question of other countries' interests or of trying to protect our dealings with other countries, as we suggested in the language of the White Paper. That is why we changed our point of view when we came to the Bill. In the Bill, the test is specific, narrow, clear and necessary to provide the proper degree of protection for our interests abroad, subject to the consent of my right hon. and learned Friend the Attorney-General in deciding whether a prosecution should go forward.
9.45 pm
Mr. Budgen : In spite of all my jocularity and sarcasm, there is a serious point. The Attorney-General is not principally a politician ; he is principally a Law Officer, who tries as best he can to administer the law in a non-political way. If we pass wide and unspecific legislation which gives wide and political discretion to the Attorney-General, we shall subject him to political criteria, which will damage his position. We are simply introducing the worst sort of legislation, which is wide and loose and will be subject to the worst type of political discretion in decisions on who should be prosecuted.
Mr. Patten : My hon. Friend uses the words "wide" and "loose". At present, my right hon. and learned Friend the Attorney-General has the ability to go far and wide over the range of potential prosecution for disclosure of information under the Official Secrets Act 1911.
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Mr. Patten : The Bill does not stop that. No hon. Member suggests that the protection of criminal law should be removed, but it is narrowed substantially according to the harm tests on the face of the Bill. That is a difference between my hon. Friend the Member for Wolverhampton, South- West and myself and it was reflected in the explanation that my right hon. Friend the Home Secretary gave earlier about harm and what was meant by "serious harm".
Mr. Maclennan : I shall be brief. The Minister has revealed that, in clause 3, he and the Government are seeking to alter the presumption in favour of the free flow of information to a presumption against the free flow of information. He has made life more difficult for journalists who report international affairs by refusing to accept that there should be a stringent harm test in the clause. Of course we all understand that matters pass between Governments which are highly sensitive and that the disclosure of highly sensitive information can cause serious injury to our international relations.
However, it is worth considering the attitude of other Governments to such disclosures and to the law on freedom of information. Many of the Governments with whom we have transactions have a much more liberal approach to the disclosure of information than the approach reflected in the Bill. In those circumstances, it is hard to see how such Governments could take offence from the disclosure of information that does not, on the face of it, do patent damage to our international relations. Amendment No. 10 is sensible, and I commend it to the Committee.
Mr. Gorst : I want to put to my hon. Friend the Minister of State and to my right hon. Friend the Home Secretary a point about this amendment, which I should have liked to make in relation to the previous amendment--that what the Government are saying about the amendment is different from what it means. It means that they want to be able to prosecute marginally damaging cases--not merely inexcusable and seriously damaging ones. Otherwise, what difference does the use of the word "serious" make?
If I was going to understand anything from what the Home Secretary and the Minister of State have said, I would understand that they make no distinction. Therefore, I cannot understand why my right hon. Friend will not accept the word "serious". If there is a distinction, it must be because the Government are saying one thing but mean another. Therefore, they are taking powers under false pretences. That is why I cannot accept the Government's view on this, and why I shall not support them in the Lobby.
Mr. George Robertson (Hamilton) : The Minister of State has raised an interesting issue, which is of considerable relevance to the country, not only to the House. The clause appears to be a catch-all. Although the Minister of State somewhat blandly says that it is up against a test of jeopardising the interests of the country, it leaves it wide open for anybody--presumably the Attorney-General--to make serious judgments, not only about domestic politics, but about international politics also.
For a start, there is the definition of "confidential" in clause 3(1)(b). Whose definition will it be? Will it be the Government's view of confidentiality or a foreign
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Government's definition of confidentiality-- in terms of the other state that is referred to in that paragraph? Precisely what are we talking about?The year before last, I was entertained by the Government of the Federal Republic of Germany to two days of an organised programme in Bonn, during which I met many Government officials and senior officers of the German Civil Service. They gave me extensive briefings about arms control, disarmament and foreign policy, especially in relation to the European Community. In those two days, I found out more about the British Government's view of various arms control negotiations than I had in five years of attempting to get such information from Ministers and officers of the diplomatic service in this country.
The fact is that the West German Government believe that that information should be freely in the public arena. The Federal Republic briefs its Opposition on a regular, often classified and always full basis in a way to which we have never become accustomed. They do not do so from any great altruism but because they believe that it is in the interests of the Federal Republic of Germany to do so. We must contrast the experience of other countries in the context of what happens in this country.
I am not making a partisan point this evening because I believe that something here is in the British national interest. When we go on to define clause 3(1)(b), we are in even muddier waters. It refers to
"any confidential information, document or other article which was obtained from a State"--
The First Deputy Chairman : Order. I am sorry to interrupt the hon. Gentleman, but he is now referring specifically to paragraph (b), which is the subject of the next group of amendments. This debate is concerned primarily with the issue of damaging disclosure.
Mr. Robertson : I accept your admonition, Sir Paul, but the general point that I hope to raise fits well within the scope of the amendment.
The problem here relates to organisations in this country for which we have become internationally noted, such as the Royal Institute of International Affairs, the International Institute for Strategic Studies, the Royal United Services Institute for Defence Studies, the Ditchley Foundation, all of which are based in this country and attract a high level of participation from abroad. All of them are used to levels of disclosure by participants under what is commonly known as Chatham house rules, and all may now be affected by the catch-all provisions in the legislations.
If I am wrong, I hope that Ministers will be able to reassure us, because the view that I express has been expressed by others. The hon. Member for Blackpool, South (Sir P. Blaker) and I both serve on the council of the Royal Institute of International Affairs and I sit on one of the senior committees of the Ditchley Foundation. I know that there is concern that the terms of the legislation might inhibit the free flow of discussion and of disclosure by Government servants, whether British or foreign, which has hitherto taken place in all these institutions. If I am wrong, I hope that the Minister will lay to rest these concerns. If I am right, something that is of enormous importance to Britain and to Britain's reputation abroad may be damaged.
Many of the discussions in such institutions take place within the arena of confidentiality described as "Chatham
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house rules". I am sure that the Home Secretary, in a previous incarnation, took part in many of these discussions, where full and frank exchanges of information may take place.Mr. John Patten : I am pleased to have a chance to say a word about the Chatham house rules, because I know that this concerns my hon. Friend the Member for Blackpool, South (Sir P. Blaker) as well. The Bill can have no effect on discussions under the Chatham house rules between British officials and others, because any officials who go to discussions at Ditchley, where the hon. Member for Hamilton (Mr. Robertson) is on the council, or other forums, would be acting in accordance with their official duties and therefore would be disclosing information with authority.
Mr. Robertson : That is an interesting explanation, which I am sure we shall look at carefully. I wonder how any official who goes to any conference anywhere can seek prior authority. How could such blanket authority be obtained? How could there be frank discussion? Is the Minister saying that every senior official has this authority as part of his job?
Mr. Maclennan : The Minister appears to be saying that, if Mr. Clive Ponting had gone to Wilton park and made his disclosures there, he would not have been prosecuted. The Minister's answer is patent nonsense.
Mr. Robertson : The hon. Gentleman hits the nail on the head. If the Minister is right, it is an interesting theory. The hon. Gentleman mentioned Wilton park, which is another of this range of institutions on which Britain's reputation abroad rests. I hope that, now that I have raised this point, and the Minister has made his point, the debate will move into more serious subjects.
Mr. Higgins : I listened carefully to what my hon. Friend the Minister said, and my impression was that he was saying that any official who goes in that capacity to a conference of the Ditchley Foundation or some similar organisation would not be in danger of being caught by clause 3 because he would be there on official business, regardless of what he might say.
Mr. John Patten : Read it tomorrow.
Mr. Higgins : My hon. Friend should take the opportunity either to say again what he said, or to say what he intended to say.
Mr. Patten : I shall repeat what I said. The officials who go to Ditchley, or wherever, would be acting in accordance with their official duty and would therefore be disclosing information with authority. Those were words that I used in the intervention, but perhaps I can go on to say more.
Since that information was communicated in confidence, it would continue to be protected under the present law. There is a difference between the present position and the proposals in the Bill. If a person to whom the information was confided decided to disclose it, it would be an offence in all circumstances under section 2 of the Official Secrets Act 1911. Under the terms of the Bill, and in relation to the point raised by the hon. Member for Hamilton (Mr. Robertson), such a disclosure would be an offence only if the prosecution could prove that the
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disclosure caused or was likely to cause harm specified in clause 3 and the discloser knew that it would do that. That is a considerable improvement on the present position.10 pm
Mr. Maclennan : The Minister's reply simply will not do. He seems to be overlooking clause 3(2)(b) which refers to a disclosure "of information or of a document or article which is such that its unauthorised disclosure would be likely to have any of those effects."
If Mr. Clive Ponting had decided to disclose documents at Wilton park which were likely to have those effects, the fact that he disclosed them at Wilton park would not protect him from prosecution.
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