House of Commons Hansard Debates for 15 Feb 1989

Sir Peter Blaker : Will my hon. Friend the Minister reconsider his reply to my right hon. Friend the Member for Worthing (Mr. Higgins)? My hon. Friend said that the official would be disclosing information in confidence. However, the Chatham house rules are not like that. They say that the information disclosed may be used by the people to whom it is given, but the author of the information--the donor of the information--may not be identified nor may the location where it was given. The information can be transmitted.

Mr. Patten : I understand Chatham house rules and I have enjoyed conversations under them. They are extremely valuable. I doubt whether my right hon. Friend the Member for Worthing or I have ever been let down by conversations that we have had under those rules. The important point is that the official would be acting in accordance with his official duties and would be revealing, even in those discussions, only items which he knew that he had authority to reveal. If he transgressed, and if someone broke that confidence specifically and said that an official had said something which might be represented as damaging, there is the harm test specified in clause 3 to which I referred at some length earlier. That protection does not exist under section 2 of the Official Secrets Act 1911. The test is a considerable improvement.

Mr. Gorst : Suppose that the official gives information indiscreetly without realising it to someone who hears it and repeats it, how is he to know that he is covered by the legislation?

Mr. Maclennan : Or if he gives it maliciously?

Mr. Patten : Whether it is indiscreetly or maliciously, he may fall foul of the law. However, he is subject to the harm test in the Bill.

Mr. Budgen : I apologise for being stupid about this, but I do not suppose that the average juror is very much cleverer that the average Member of the House of Commons and jurors will have to decide this. Let us assume that there is a Ditchley discussion and a recipient of information proposes to disclose it widely. How does he know that the official is authorised to give the information? How is the recipient to know whether harm will be caused?

Mr. Patten : If he does not know, and the prosecution cannot prove that he did know, he is fully protected by clause 3.

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Mr. Eric S. Heffer (Liverpool, Walton) : On a point of order, Sir Paul. I should be grateful if the Minister would address the Committee, because when he turns to address his right hon. and hon. Friends we cannot hear him.

Mr. Jeff Rooker (Birmingham, Perry Barr) : I give the Minister another example to consider. My understanding of the words "any confidential information" in clause 3(1)(b) is that the imprimatur of confidentiality is placed on the document by the British Government, or by the Minister, and that that is the trigger. That also relates to amendment No. 10, and to the difference between the words "damaging disclosure" and

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

The confidentiality of a foreign document, for example, may be decided by a British Minister, and one has to accept his word for it that a document is confidential.

The example I give only came to light in the last few hours. On 10 January, the House was told by the Secretary of State for Transport, in a statement on the Lockerbie air disaster, that confidential information had been received from the United States, and that hundreds of such documents and warnings had been received. He said that they could not be disclosed because there were too many of them, and that there were various reasons why warnings were not passed on. In the last few hours, it has been revealed that the British Government received only 16 warnings from the United States last year concerning possible security problems on aircraft, that the Federal Aviation Authority issued only 24 warnings during the whole of last year--and that that concerning flight PA 103 was No. 22. So the suggestion that there are hundreds of confidential security warnings held by the British Government is a myth, and it has been proved a lie.

The American Government did not say that the information in question was confidential--that claim was made by the Secretary of State--but under the Bill, an individual who discloses such information can be held to have made a damaging disclosure. That is because the Bill is drafted so widely, as Conservative Members said, that it leaves massive discretion in the hands of the

Attorney-General--but if amendment No. 10 is accepted, such information could not be said, by any stretch of the imagination, to "cause serious injury to the interests of the nation."

If it transpires that information designated as being confidential by the British Government may not be held to be confidential by the foreign Government from whom it emanated, it alters the whole debate about damaging disclosures and its ability to

"cause serious injury to the interests of the nation."

The example I give is not hypothetical, and I ask the Minister to address it when he concludes the debate.

Mr. Robertson : I intervene to remind my hon. Friend that the Minister asked the Committee to bear in mind the harm test--that the disclosure will be judged on the harm that it can cause. But when we are talking about international diplomacy, how on earth will harm be judged? That may be easy to substantiate in the domestic context, but in the short and long-term context of international diplomacy, the harm test is worse than useless and will not help.

Mr. Rooker : I cannot answer my hon. Friend's point, but the Minister can reply to both of us.

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Mr. John Patten : With respect, I think that the hon. Member for Birmingham, Perry Barr (Mr. Rooker) may be confusing arguments about items of information received in confidence--which are a matter for the next two groups of amendments--with what we are addressing on amendment No. 10 : disclosure that would cause serious injury to the interests of the nation abroad in international relations. He seemed to be talking about what could and what could not be disclosed in this country.

I said at the outset of tonight's debate that one of the reasons for our objection to amendments Nos. 10 and 11 was that they would have no effect on the Bill. They simply insert declaratory words which will not affect the tests of harm that my right hon. Friend and I have suggested. I suspect, however, that the hon. Gentleman's argument may come up again in the debate on the next group of amendments, which I hope we shall get on with shortly.

Mr. Corbett : I do not want to delay the House, but we really cannot leave matters as they are. I am glad that the Government Chief Whip is in his place, because one of our problems is that every time that the Minister of State replies to points that have been made he causes more confusion than we started out with. I accept that we are the only ones who are confused and that the Home Secretary and the Minister are possessed of brilliant clarity ; that is a cross that we will have to bear.

The Minister said that an official going to a conference at Ditchley or Wilton park--perhaps under Chatham house rules, and we all know what that means--will be authorised on occasion, because he is on official duty, to make disclosures that he would not otherwise be able to make. I cannot believe that the Minister means what he has said. That is a licence for any civil servant to say anything that is appropriate to the debate in question.

All that the official will know when he is invited to Wilton park, or wherever, is the area--roughly--that the debate will cover. He will not know what points other conference members will raise. Or will he be given a list and be told, "You can say this, this and this, but that is all. On no account must you say this, this and this"? I cannot believe that the Minister believes that prior and blanket authority should be given to any and every official present on official duty to say anything that he considers appropriate.

Mr. Gorst : What the hon. Gentleman is saying, I am sure, is that when something is revealed that is embarrassing to the Department concerned, there will be an unseemly internal argument about whether that official was authorised to reveal it, and as a result he will be put in considerable danger in the exercise of his duties.

Mr. Corbett : The hon. Gentleman is quite right. To put it another way, there will be some awfully black Monday mornings knocking about when officials have been at such conferences over the weekend.

Mr. Whitney : Those who oppose these propositions have to construct an entirely unrealistic scenario of a senior offical going off his rocker. Most senior officials well understand Chatham house rules, whether or not they are at Chatham house. They know the parameters. If, in the context that my hon. Friend the Member for Hendon, North (Mr. Gorst) has suggested, an official does go off his rocker, there will indeed be a bad Monday morning, and so there should be.

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Ultimately we must return to the limitation in the clause, which is a damaging disclosure. Surely all hon. Members agree that if a disclosure is damaging, it should be vulnerable to prosecution, but if, under Chatham house rules, the disclosure is protected and guarded in the sense that we all know, damage is not created. It is easy for the hon. Member for Birmingham, Erdington (Mr. Corbett) or my hon. Friend the Member for Hendon, North to create unrealities, but we are trying to deal with the real world.

Mr. Corbett : The hon. Gentleman simply does not understand and I am anxious to get on. Everyone who has been involved in conferences at Wilton park or wherever knows full well that to some extent once can sit there and think aloud. I do not mean that in any irresponsible manner ; it is the nature of those discussions. One knows exactly who will be there. One receives a list beforehand of who will turn up. One knows the circumstances under which those conferences take place. The hon. Gentleman is no help to the Minister of State. The House accepts that there are categories of information--that is what the serious injury test is all about--which the Government should rightly protect, but the Minister is now saying that there are circumstances in which protection can be removed from people sent on those official errands. However, I shall leave the matter there unless the Minister provokes me.

10.15 pm

The Minister makes the best defence he can for using the word "jeopardise" rather than the concept of "serious injury" which the amendment seeks to import into the Bill. Have I understood the Minister properly? He keeps changing his mind. About a fortnight ago he was speaking about those famous nine tests of harm. He called them "specific harm tests". In a letter in The Observer this week, they changed from "specific harm tests" to "harm tests". That was not the accidental dropping of one word. There is a world of difference between "specific harm tests" and "harm tests". A harm test is implying that it could be a general test of harm. That is what the clause is all about.

I assume from the Minister's argument that he prefers the word "jeopardise" because it is a wider, lower test of harm. If that is so--this is the logic that keeps confusing us all--why, in line 31, instead of saying "seriously obstructs", does he not leave it as "obstructs"?

The Minister may think that he has explained it, and I acknowledge that he did have a go, but I could not follow his argument. I shall read it tomorrow, and I lay him a fiver bet that it will not be any clearer in print than it was when he said it. The argument is not that we want everything to hang out, as the hon. Member for Wycombe (Mr. Whitney) suggests. We accept the need for such a provision, but we believe that the tests of damage which are to be applied should be set out as in the amendment.

Amendment negatived.

Mr. Teddy Taylor (Southend, East) : I beg to move amendment No. 24, in page 3, line 21, leave out from relations' to end of line 24.

The First Deputy Chairman : With this it will be convenient to take the following amendments : No. 25, in page 3, line 24, at end insert listed in Schedule (International Organisations) to this Act'. No. 82, in page 3, line 24, at end insert

other than the European Community.'.

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No. 27, in page 3, line 37, leave out subsection (3).

No. 28, in page 3, line 40, leave out from mentioned' to end of line 41.

No. 29, in page 4, line 2, after organisations' insert

listed in Schedule (International Organisations) to this Act.' No. 30, in page 4, line 4, after second to', insert such'. No. 31, in page 4, line 6, after second with', insert such'. No. 32, in page 4, line 6, at end insert

but does not include any matter relating to the European Community or to the relations between the Community and the United Kingdom or other member States.'.

No. 43, in clause 13, page 10, line 41, leave out from means' to end of line 43 and insert

an organisation listed in Schedule (International Organisations) to this Act.'.

No. 44, in clause 13, page 10, line 43, at end insert

but does not include the European Community or any organ of it.'. No. 45, in clause 13, page 11, line 1, leave out subsection (2). No. 47, New Schedule (International Organisations)

The North Atlantic Treaty Organisation

Interpol.'.

f divn list Mr. Taylor : My hon. Friend the Member for Aldridge- Brownhills (Mr. Shepherd), who has put so much effort into this important Bill and has spent many days and nights examining its implications, has kindly allowed me to move amendment No. 24 because I am anxious to refer to amendment No. 32, which I regard as extremely important.

I hope that hon. Members who have listened to the debate and have appreciated that there are important arguments on both sides will accept that clause 3 is special. There are implications for the Government to maintain security, but it is also important to ensure a relatively free flow of information. Clause 3 is different from the others in that it appears to create entirely new offences to deny the people of Britain information to which they are entitled about the legislative process.

Under clause 3 it would be an offence to disclose information supplied in confidence to Britain by another Government or by an international body. The offence is subject to a harm test that the disclosure is likely to jeopardise the interests of the United Kingdom abroad. Clause 3 makes it clear that such harm may result from the fact that a breach of confidence has simply occurred, regardless of the contents or nature of the information involved. My right hon. Friend the Home Secretary said :

"the prosecution may argue that 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."

We are talking here about the embarrassment to the United Kingdom. We are not talking about the nature of the information. Thus, the disclosure of relatively unimportant or trivial information could be an offence if the information had been supplied to the United Kingdom in confidence.

The offence could occur even if Britain had not been specifically asked to treat the information as confidential, if the information had been supplied in circumstances in which the country or body supplying it could reasonably have expected it to be treated as such. In practice, all communications between Governments are normally assumed to be in confidence unless the country states otherwise.

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Mr. Hurd : My hon. Friend used the word "embarrassed". I do not know how he can say that under the Bill a prosecution could occur simply because the information was embarrassing.

Mr. Taylor : I can do that by quoting the Home Secretary's own words. He said:

"the prosecution may argue that 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.]

not talking about the nature of the information, but the fact that a disclosure has taken place which could jeopardise our country's relations with another. We may take the view that something completely trivial which has been disclosed is damaging to our relations with that country and could, in fact, jeopardise the country. Mr Hurd : Indicated dissent

Mr Taylor : My right hon. Friend the Home Secretary shakes his head, and he is one of the most responsible, reasonable and kindly people in the Cabinet. it is all very well for him to shake his head, but what on earth was he saying on 21 December?

Mr. Greg Knight (Derby, North) : Is not my right hon. Friend the Home Secretary making the point that the harm test would still apply? Under clause 3(2), the prosecution must show that a disclosure jeopardised our interests abroad? Is that not the point that needs to be made?

Mr. Taylor : I appeal to my hon. Friend to read clause 3(3). What the blazes does 3(3) say? It is a fact that there has unfortunately been a breach of confidence which could affect our relations. My right hon. Friend the Home Secretary made that abundantly clear. If it does not say that, what on earth does 3(3) mean?

Mr. Hurd : It means that for there to be a prosecution the prosecution must prove the harm test. Clause 3(2)(a) says : "it jeopardises the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests or endangers the safety of British citizens abroad".

Regardless of whether it is the contents or the fact of disclosure that we are talking about, it would have to pass the harm test. My hon. Friend has mentioned embarrassment, but that is not in it. He has also mentioned harming our relations with other countries, but that is not there either.

Mr. Taylor : If that is the case, what on earth do we need clause 3(3) for? I appeal to my right hon. Friend to read what is in his own clause. I hope that other hon. Members will look at it, too. It says :

"Information or a document or article within subsection (1)(b) above may be regarded for the purposes of subsection 2(b) above as such that its unauthorised disclosure would be likely to have any of the effects there mentioned either by reason of the fact that it is confidential or by reason of its contents or nature."

We understand its content and nature. If, for example, someone knows something appalling--such as what the EEC is actually spending on food dumping--that would be damaging.

On the other hand, there is the second factor,

"by reason of the fact that it is confidential".

Again, I believe that my right hon. Friend the Home Secretary is well aware that the disclosure of something which was confidential could have a prejudicial effect on

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the interests of this country in relation to international organisations. I hope that my right hon. Friend will make it abundantly clear that clause 3(3) means something very special. It does not just mean that the information disclosed is damaging--it means that the disclosure of information which was not especially damaging could have a damaging effect on the relations between this country and others. If that is not the case, will he accept the amendment to remove subsection (3)?

Mr. Richard Shepherd : As my hon. Friend said, clause 3(3) says : "either by reason of the fact that it is confidential". That triggers off subsection (2) (a) and (b). One can virtually bypass having to meet those criteria because one has to demonstrate that the information is confidential. That could satisfy the prosecution's case and, therefore, the jury. As we require clarity in this matter, which my right hon. Friend the Home Secretary is seeking to give us, it may be wise to accept the view held by my hon. Friend the Member for Southend, East (Mr. Taylor).

Mr. Taylor : My hon. Friend is right. Anyone who looks at the Bill will appreciate that we are passing laws which juries will have to interpret, and they cannot ignore clause 3(3). Even if we forget all that, and what my right hon. Friend the Home Secretary said on 21 December, we can still look at the White Paper, which is even more explicit. The argument in the White Paper maintains that the harm was not merely to Britain's ability to protect its interests in the country which supplied the information. It says :

"such disclosure has a wider disruptive effect on international diplomacy. If it appears that this country is unwilling or unable to protect information given in confidence, it will not be entrusted with such information. The Government's ability to function effectively in international diplomacy and in relation to international organisations, and consequently its ability to protect and promote the country's interests will thereby be impaired There is a wider damage to the standing of the United Kingdom in relation to all governments and international organisations."

First, we have the Home Secretary's speech, which seems to make it clear that we are concerned not just with the information but with the consequential damage. Secondly, we have clause 3(3) and thirdly we have the White Paper. Those three pieces of information say, in effect, that we are concerned about relations between Britain and other countries and international organisations. If someone went before a jury with those three pieces of information, that would be a lot to go on.

We are dealing with something serious and new in clause 3. It is different from most of the other provisions in the Bill in regard to which my right hon. Friend the Home Secretary will have seen me walking happily and confidently beside him into the Lobby. In those circumstances, I hope that he will pay particular attention to this clause.

Will my right hon. Friend the Home Secretary look at some of the special problems? For example, the Bill refers to

"A person who is or has been a Crown servant".

What about people who have conflicting loyalties? Some of our former civil servants have become staff of the EEC in Brussels. The noble Lord Cockfield kindly reminds us from time to time that, the moment one moves to Brussels, obligations that one has to one's own country disappear and one takes on wider obligations to the European Community.

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What is the position of a former civil servant who becomes a European civil servant? They do not last long--they seem to retire quickly on health grounds because it is more financially advantageous--but some of them are there for a while. They might disclose information which would be embarrassing to the United Kingdom but would serve the wider interests of the EEC. What does the Home Secretary suggest that someone in that position should do, bearing in mind that there is not just a conflict of loyalties but that the person would have signed a document saying that his responsibility was to the EEC?

How on earth can we accept clause 3 when we do not have the slightest idea what is meant by the phrase "international organisations"? We would like to know what that means. Does it mean the Cocoa Federation, the Tin Council, NATO, Interpol or, perhaps, the European Economic Community? That is crucial. Even if my right hon. Friend the Home Secretary forgets or chooses to ignore all the other arguments--there is not the same scope for intellectual freedom as we have from the Home Secretary on other Bills--I hope that he will at least be able to consider amendment No. 32 in the name of the right hon. Member for Bethnal Green and Stepney (Mr. Shore) and several of my right hon. and hon. Friends.

What about Euro-documents? Are they the product of an international organisation, or part of our judicial process? The Home Secretary, of all people, should know that the EEC is not an international organisation in the same way as the Tin Council is. It is a legislative body which passes laws that apply directly to the United Kingdom--even if we do not pass them here, we cannot ignore them. The Prime Minister might disagree with him, but Mr. Delors has said that 80 per cent. of our laws will be made in the EEC, not here. The EEC publishes a directive. If we are lucky, we can debate a motion to take note of it for an hour and a half, sometimes before and sometimes after the decision on it has already been taken

Mr. Gorst : Would my hon. Friend include information that an MEP had obtained in a privileged way and revealed to the European Parliament?

10.30 pm

Mr. Taylor : Certainly, former civil servants or Government contractors might find themselves in a difficult position. To return to the EEC, are we to say that any information regarded by it or by our Government as confidential cannot be disclosed without incurring frightful penalties?

Mr. Greg Knight : I agree with many of my hon. Friend's views on the EEC. Most of the confidential information that might be received from the EEC would not satisfy the test of harm, but does my hon. Friend seriously contend that there are no circumstances in which harm could be caused? For example, if the EEC were negotiating a trade agreement with a non-member country, could not Britain's interests be harmed by disclosure?

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Mr. Taylor : In such a case the nation's interests might be seriously damaged. To take a more topical example, after midnight tonight we are to debate a proposal which may or may not lead to a trade war with the United States. It has to do with the nasty hormones that some people want to put into meat--

Sir John Stradling Thomas (Monmouth) : Do not talk rubbish.

Mr. Taylor : I am making an important point.

Sir John Stradling Thomas : Hormones are not nasty--they are natural.

Mr. Taylor : I apologise for being flippant, but my hon. Friend knows that I am making an important point. We know that the EEC carried out a study of the American use of hormones in cattle. Reports suggest that the study concluded that no harm ensues from that, but the results have never been published. Most hon. Members would like the report published, but apparently it came up with the wrong answer, so disclosure of its contents would be embarrassing and could cause harm or prejudice to the Government and others. Is it seriously suggested that it would be wrong or damaging to publish such information? These questions are important to the freedom of people and of this country.

May we be given a clearer idea of what an international organisation is? Will my right hon. Friend at least accept that the EEC is no international organisation but rather part of the law-making process of this country? It would be outrageous to include documents regarded by the EEC--or by us--as confidential in the category that we are discussing.

We are introducing offences which did not exist under previous legislation. We are faced with an open-ended situation by which the Government of the day will decide what are international organisations. The clause, if enacted, will create impossibilities for former civil servants who have accepted duties and obligations within international organisations which make laws for Britain. I hope that my right hon. Friend the Home Secretary will accept the amendment. Unamended, the clause will lead to the further nonsense of creating offences which are not offences by their nature but because of the consequences of disclosures in terms of relations between Britain and various international organisations.

This is perhaps the most serious part of the Bill. It will create totally unfair offences and massive confusion for people coming from abroad or from international organisations. It represents a dangerous power and it should not be given to any Government of any party. Under it, the Government of the day can declare an international organisation to be anything that they think fit, without definition and without specification. I hope that my right hon. Friend the Home Secretary will do something to sort out a serious and worrying part of the Bill.

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Official Secrets Bill

Mr. Foot : In our debates on the Bill the Home Secretary has often claimed that the measure is restrictive and does not extend the area to which the consequences of the Official Secrets Act or other legislation of this type apply. Many hon. Members contest that view and believe that there are many other features of the Bill by which the Government are enlarging rather than reducing the operation of the Official Secrets Act. We do not say that there is no area where it is not reduced, but parts of the Bill introduced areas in which the Act has not previously operated.

Mr. Hurd indicated dissent .

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