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Mr. Foot : I will not go over some of the previous debates in which we have expressed our belief that the Government are extending the areas to which the Official Secrets Act may be applied. We think we have proved our case, for it has not been rejected by any substantial argument to the contrary by the Government. That has applied to our debates on confidentiality and other matters.
There cannot be any doubt but that by this part of the Bill, which the hon. Member for Southend, East (Mr. Taylor) wants to amend, the area of operation is being extended.
Mr. Hurd indicated dissent .
Before the introduction of this measure, if an offence occurred in relations with our allies in terms of leakages of confidential or other information in negotiations in the Common Market, the Official Secrets Act could not be applied. By this clause, the Home Secretary is extending the operation of the Act, and the term "international organisation" is extremely wide.
By his intelligent amendment, the hon. Member for Southend, East is seeking to make at any rate this part of the Bill absolutely clear and to get any issue concerning our relations with the EEC--be it the Commission or other Common Market body--excluded from the operation of the Official Secrets Act.
If the Home Secretary claims, "We may still wish to look at our relations with the Commission or the Council and at how we are operating, and see that some restrictions are applied," he should take that step under separate legislation. It should be introduced under a suitable part of one of the Acts that the EEC occasionally introduces to cover our relations with the European Community. Some of us were bitterly opposed to the Single European Act, but if there is to be an alteration in the way in which discussions should take place with other European countries, it should be done under that form of legislation.
I hope that the Home Secretary will be willing to accept the amendment and others. I hope that he will consider afresh the ideas of incorporating in official secrets legislation some changes in relations between this Parliament and European organisations. The matter has been widely discussed in Parliament over many years. Every time we have had a debate there have been strong differences. I can understand what would have happened at the time of the Single European Act or, before that, the legislation which took us into the Common Market if there
Column 420had been proposals to introduce official secrets provisions. Many of us would have argued strongly against their inclusion. All the greater is the reason why the provisions should not be incorporated in a Bill of this character. The amendment would ensure that there would not be any doubt about the matter.
I have listened to the whole of the debate today, as I have listened to almost all the other debates on the Bill. The Home Secretary seems to take it amiss when I and others say that the Attorney-General or the Solicitor- General should be present at these debates. When I put that to him a little while ago, he shook his head and said that I knew how these matters were dealt with. I do know. When I was Leader of the House, many representations were made to me and to those responsible for Government business about Law Officers being in attendance at debates. It is a good idea.
The hon. Member for Wolverhampton, South-West (Mr. Budgen) has made the point several times that the Attorney-General will have considerable powers under the Bill. He will have fresh powers under this clause. I am not saying this against the present
Attorney-General, but Attorneys-General have to be watched with suspicion. In the 18th century the Attorneys-General and the Law Officers were regarded often as the most corrupt members of the Administration. I am not saying that the same has applied recently. I do not use rough words like "corrupt" which the right hon. Member for Old Bexley and Sidcup (Mr. Heath) uses so readily and so aptly, but I do not wish to detract from the force of his intervention the other day. I note that the Home Secretary does not disagree with what his right hon. Friend says on these matters.
The Attorney-General will have many powers under the Bill. In some respects it is right that his powers should be limited. In some spheres they will be limited and in others they will be extended. They will be extended under clause 3. The choice as to whether there should be prosecutions will be enlarged. There have been modern examples from 20 or 30 years ago when the future of a Government has depended on whether a prosecution was brought by an Attorney-General. It happened in the case of the Labour Government of 1923. That Government fell because of the dispute in this House about the way in which an Attorney-General had sought to use his powers. These things can happen. I have seen many examples in more recent times, although I will not specify them, because that might be too tender for some. 10.45 pm
Mr. Budgen : Was it not the exercise of the discretion of Sir Patrick Hastings, who was then Attorney-General, in the case of Mr. Campbell that led to the fall of that Government? I think I am right in saying that the question was whether proceedings should be instituted against a person who had Left-wing sympathies. Much controversy arose as a result of the Attorney-General's decision in that case.
Mr. Foot : Indeed, that is the case to which I was referring. The hon. Gentleman is absolutely right. The Labour Government of 1923-24 fell primarily because of opposition in this House to the way in which the Attorney-General had used his authority. There was a great dispute about whether he had allowed his political
Column 421sympathies to influence the way in which he used that authority. The hon. Gentleman is quite right in what he has said in all his interventions.
Of course, there will be suspicions about the way in which the Attorney- General may use his powers, particularly if they are not so carefully defined as they might be. The hon. Gentleman is right also in saying that if Parliament does not provide a proper definition in legislation, the position of the Attorney-General is in some cases made the more invidious.
I can remember quite a few other cases over the past 20 or 30 years in which the position of the Attorney-General in respect of his advice in particular cases may have been of supreme political moment. In those circumstances, the Attorney-General often has a difficult choice to make. He has to take into account some of his political associations and the fact that he is a member of a Government. But he has to take account also of all these other questions.
In the interests of the Attorney-General, and to make the Bill effective, these matters must be defined as carefully as possible. But much will still be left to the versatility or the discretion of the Attorney-General. One cannot escape that, but, by providing proper definitions, one can limit the difficulty arising from such a state of affairs.
I come back to the Leader of the House--although, again, he has not troubled to attend this debate, I am sorry to say. He forced the guillotine, but he has not come along to listen to what is happening, and I think that is quite wrong. I am not in any way denigrating the way in which he makes his speeches, or anything like that, but there have been serious differences between the powerful arguments from both sides of the Committee and the replies from members of the Government Front Bench, whether from the Minister of State or from the Secretary of State himself.
We are told that this is the advice the Government have received on these legal questions. Those are almost the words that the Home Secretary used on two or three occasions. But that is not good enough ; we are entitled to hear the Attorney-General himself speak to us on these matters.
I see that the Leader of the House is making one of his rare visits to the Chamber. We are glad to welcome him. I was referring to him a few minutes ago, and I am glad that my words reached him so swiftly. I hope that every time I summon him he will come so quickly. I only hope that he will take my message back via the Minister who is in charge of the Bill. We ought to have the Law Officers in attendance during these debates, partly because many matters are left to the discretion of the Attorney-General, and partly because we are discussing the whole question of when prosecutions will be brought, even if the Attorney-General will not himself make the final decision about such matters.
The case that the right hon. Gentleman has been making to us throughout the debate is, "We are reserving the power. It is going to be used intelligently. You don't have to worry too much if the Bill does not have the right words." To have those debates without the Law Officers being here to answer for the advice that they have given to the Cabinet is wrong. I do not say that because I have any great faith in Law Officers, or in judges. The judges are not very fine. Often they make great mistakes on many of these matters. One reason why we have to deal with the Bill now is that we cannot trust them.
Column 422Curiously enough, although it is a strange thing to say, having listened to the previous two or three debates, I have much more faith in the wisdom of the House of Commons than I have in those other bodies. There is much more common sense here, if only it could be released. The Home Secretary has plenty of common sense, if only he did not come to the Committee with his hands tied. If he came prepared to listen to what we had to say and to use his discretion about whether to accept an amendment, there would be an entirely different atmosphere. If the right hon. Gentleman had tried to deal with the Bill on that basis, we could have had an Official Secrets Act that would have been capable of standing up for quite a number of years. As it is, we shall have a complete abortion.
The right hon. Gentleman is about the most persuasive member of the Government Front Bench, but on all the occasions that he has risen to speak, he has been unable to persuade the Committee. Not once has he been able to meet the case made, not merely by Opposition Members, but by Tory Members. That is a travesty of discussion here, and I am sorry that the right hon. Gentleman has not approached the matter in an entirely different spirit.
However, there is always the eleventh hour. The right hon. Gentleman can still come back and say that he will make a concession to his hon. Friend the Member for Southend, East. He will not do that for any of his other hon. Friends, because they are miscreants. They have been voting against him whenever they have had the chance over the past few days, and all honour to them. I know how difficult it can be constantly to oppose one's party in the House of Commons. That is not at all easy. The hon. Members for Aldridge-Brownhills (Mr. Shepherd) and for Thanet, South (Mr. Aitken) and others have shown themselves to be truly honourable Members of the House, deserving great credit from the country for the way in which they have presented their case. They have presented it so well that they have caused deep offence to the Government.
However, the latest recruit is a youngster. He has not voted against the Government for at least the last three weeks. He comes along with a clean sheet to make his appeal to the Home Secretary, and if the right hon. Gentleman cannot respond to that he has no heart left in his body.
Sir Ian Gilmour : In his interesting speech earlier this evening, my right hon. Friend the Home Secretary put his finger on what was wrong with the Bill. It is clear that he is comparing the Bill with the present legislation as though that legislation were fully operative. If it were, we would all agree that the Bill was a great improvement upon it, but we all know perfectly well that the great virtue of the present legislation is the fact that it is inoperative. In many respects--this is relevant to the new offence point--the Bill is inferior to what we have already because the Government are incapable of using it.
I agree with much of what my hon. Friend the Member for Southend, East (Mr. Taylor) said, although I do not share his views on the EEC. It is clear to me that clause 3 is far too wide and goes much too far in at least three respects.
I want to deal with the extraordinary approach to foreign affairs that is exhibited in the Bill. The clause would be fully appropriate to the days of the congress of Vienna and the Holy Alliance, when foreign affairs were purely a matter for the elite--a few people sitting about in
Column 423drawing rooms--when the press would have been prosecuted even more than they will be under this Bill and the public were not concerned with foreign affairs at all. That is the approach to foreign affairs reflected in clause 3.
Have the Government ever heard of Woodrow Wilson, or does our history begin only with Harold Wilson? It probably does. The ideal of Woodrow Wilson was open covenants, openly arrived at. That is utopian-- there has to be secret diplomacy--but the idea of returning to the idea that almost any revelation or disclosure is wrong and will be damaging is absurd. It does the Government no credit to seek to hark back to foreign affairs as though they were a recondite matter. My right hon. Friend and I have served together in the Foreign Office and we know that most things are not secret, although some are. To try to make foreign affairs a closed conspiracy is ridiculous.
That is a general point. The particular point is in the words : "any article relating to international relations".
That covers an enormous area. Clause 3(5) refers to "international organisations" but does not define them beyond describing them as "international organisations". Clause 3(2) says that a disclosure is "damaging" if it
"jeopardises the interests of the United Kingdom abroad". I agree with clause 3(2) when it says :
"or endangers the safety of British citizens abroad".
That is perfectly specific and we would all agree with that, but what are the interests of the United Kingdom abroad?
In winding up the earlier debate, my hon. Friend the Minister said that one could define the public interest in terms of jeopardising it. That seems to be a non sequitur. What are the interests of the United Kingdom abroad? Does the clause mean the Government's interests? The definition is far too wide and reflects an attitude to foreign affairs that is wholly absurd. The great virtue is that, if the Government bring prosecutions under the clause, no sensible jury will have any hesitation in acquitting. I hope that the Government will try to make the clause slightly less absurd by accepting amendment No. 24.
Mr. Budgen : It is all very well saying, as in general I do, that the great safeguard of the Bill is that a jury will exercise its right to disregard what the judge says and to acquit even against the judge's summing up and the evidence, but that is a dangerous safeguard. It is an ultimate safeguard in our constitution, but it means that a jury would be saying that in a particular instance it intended to disregard what the legislature and the laws said. That is not something for which we should legislate lightly.
Sir Ian Gilmour : I agree. Clause 3 would be subject to the same ridicule as the current legislation, so one can fairly argue that we might as well have the present ridiculous legislation rather than new ridiculous legislation. I was merely expressing the pious hope that if the Bill is passed unamended juries will have the common sense to make it rather less silly than it is.
Mr. Budgen : It is all very well to have the occasional trial, such as that of Mr. Ponting, in which the judge plainly tells the jury that its duty under the law is to convict, but if almost everybody charged with an offence under the Bill is acquitted because the jury exercises its constitutional right, that is an attack on the rule of law.
Column 424That is a serious matter, and that is why it is important that we try to make the Bill tighter, more specific and not too much subject to the discretion of the Attorney-General.
Mr. Maclennan : It is a novel experience to find myself on the same side of an argument as the hon. Member for Southend, East (Mr. Taylor). Since the occasion about 40 years ago when we stalemated each other at chess as schoolboys, we have been on opposite sides of the table. Although I do not share the hon. Gentleman's views about the Community, on this occasion he has put his finger on an extremely important aspect of the Bill. The Home Secretary owes the Committee a detailed explanation of the hon. Gentleman's points.
Although I have never shared the Home Secretary's view of the Bill, he has sought to present it as a narrowing of the criminal law in relation to official secrets. He has tried to argue that he is removing from the ambit of the criminal law large sections of our public administration. However, by including in this clause the reference to "international organisations" and confidential information obtained from them--as the Bill stands, that must include the European Community--he is bringing back, by the back door, the criminal law's coverage of wide areas of public administration that would otherwise be exempted from the criminal law.
The European Community now touches many aspects of our lives. One does not need to accept President Delors's view about the way it is going to recognise that agreements within the European Community touch on matters that do not seem in any way to fall within the other heads of importance contained in the Bill. One can refer, for example, to the question that has been much discussed in recent weeks--food safety. That has been very much a domestic issue, but it is extraordinary that revelations about the attitude of the French Government to possible retaliation against the British Government for their behaviour in respect of soft cheeses could be described as damaging in such a way that the criminal law should be invoked to protect Britain's interests.
I dissented slightly from the view that was expressed in more than one intervention that this clause widens the ambit of the criminal law beyond the Official Secrets Act, which the Bill replaces, but it certainly widens it a great deal beyond what the Home Secretary has sought to present it as doing. The Home Secretary referred to the six areas in which it is right to invoke the criminal law and sought to present them as relatively narrowly defined. He must understand that clause 3 is a catch-all clause that enables the threat of criminal prosecution to be waved over the heads of officials who are in any way connected with the international discussion of matters that are domestic within the European Community.
I hope that he will--
Mr. Greg Knight : Will the hon. Gentleman tell the House why it is sensible to exclude all European Community information? Can he also deal with the point that I raised with my hon. Friend the Member for Southend, East (Mr. Taylor) about when the European Community is conducting trade negotiations involving a country or countries outside the Community. Surely, in such cases, Britain's interests could be damaged.
Mr. Maclennan : Yes, it is perfectly possible that Britain's interests could be damaged, but the question is not whether they could be damaged but whether we require the criminal law to protect us from that potential damage. However, I do not think that the amendments are necessarily precisely the right ones to deal with the argument that I am advancing.
There is a clear distinction to be drawn between our membership of the European Community and our membership of other international organisations. The European Community is part of our legislative process. If it is right that we should exclude from the ambit of our criminal law domestic agriculture matters, for example--that is an argument that the Home Secretary has advanced--why should such issues suddenly become protected by the criminal law if they are being discussed and decided within the organs of the European Community? That concept does not lie squarely with the Home Secretary's argument, which is that the Community should be regarded and included as an international organisation for the purposes of the Bill.
Our relations within the European Community are no longer international. Instead, they are essentially domestic. The treaty which we signed and acceded to has made us part of a decision-making process which is superior even to the processes of the House. I appreciate that there may be some problems in distinguishing between the European Community's activities that involve third countries and those that concern the United Kingdom, but when it comes to internal Community matters it seems that the Home Secretary should exclude those from the scope of the criminal law by means of the Bill. I hope that he will find it possible to agree that that is something that he will wish to consider as the Bill proceeds through this place and another place. As things stand, it seems that he has blown a gaping hole in his argument that the scope of the Official Secrets Act 1911 is narrowly being reduced as a result of his failure to exclude the European Communities.
Mr. Hurd : I agree that we are considering an important set of amendments. I say to the right hon. Member for Blaenau Gwent (Mr. Foot) and to my hon. Friend the Member for Southend, East (Mr. Taylor) that nothing in the clause creates a new offence, nothing in it adds to the discretion of the prosecuting authorities, and nothing in it is not covered by section 2. My right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour) tacitly conceded that by saying that a dead Act was better than a Bill of this sort. The hon. Member for Caithness and Sutherland (Mr. Maclennan)--
Mr. Richard Shepherd : That goes to the heart of the matter. An argument resides in the fact that information received from sources abroad and given to journalists--clause 3 must be read in conjunction with clause 5, involving others who might be affected--might lead to the possibility of an offence. Information that is given--leaked or otherwise--in confidence from another organisation to
Column 426our own organisation and to newspapers, could give rise to an offence, although that, of course, is not the issue at the moment. Secondly, we have added international organisations, which are undefined. I understood my right hon. Friend to say that this addition does not give rise to any new offences.
Mr. Hurd : I do not believe that it does. The matters covered by the clause are covered by section 2, but my right hon. Friend is right to say-- this is part of the criticism of section 2--that it is difficult to have effective prosecutions under section 2 because, as has often been said, it is too wide and too weak.
There is a principle here which may well be as old as the congress of Vienna. I am not disputing that, but there is still some validity in the proposal. My right hon. Friend the Member for Chesham and Amersham recalled our service together at the Foreign Office. I recall that he had a rather traditional view of these matters at that time, although I may be wrong. The traditional view in this respect is that our ability to exchange information in confidence with other countries and international organisations is fundamental to effective international relations. We need those relations and there is an element of trust. If we break the trust upon which international exchanges are often conducted, those interests can be put at risk. I emphasise the word "can". It is not automatic, but where that might happen is an area in which the criminal law can properly be engaged. My hon. Friend the Member for Southend, East referred to the White Paper. Of course we made this principle an absolute matter in the White Paper. We said that the criminal law could be visited on all such disclosures in confidence from foreign Governments or international organisations, but we were persuaded out of that in the debate on the White Paper, so my hon. Friend the Member for Southend, East is right. We have made a substantial change between the White Paper and the Bill in that respect by saying that it is not an absolute offence and by introducing the test of harm. Of the three changes that we have made, that was the most substantial. All the changes were in the same opening-up direction, but that change between the White Paper and the Bill was the most substantial.
On reflection, I do not believe that every disclosure of confidential information is likely to be so harmful as to require the protection of the criminal law. That is why we introduced the test of harm.
My hon. Friend the Member for Southend, East and my hon. Friend the Member for Aldridge-Brownhills clearly believe that the effect of clause 3(3) is to bypass the harm tests and to create an absolute offence, but that is not so. Clause 3(3) says that the information may--I emphasise "may"--be regarded as meeting the harm test. It does not say that it "shall" be so regarded--the prosecution has to prove that. That is crucial. The harm test still exists and my hon. Friend the Member for Aldridge-Brownhills is wrong. The prosecution still has to prove the specific harm, so it does not matter whether the prosecution rests its case on the contents of the disclosure
Column 427or on the argument that the disclosure causes a specific harm. The specific harm is not bypassed--the prosecution has to meet it in either case.
Clause 3(3) respects the harm test, so both my hon. Friends the Members for Southend, East and for Aldridge-Brownhills were wrong to say that we are recreating the absolute offence that we moved away from between the White Paper and the Bill. I have been hammering away at this point for a long time now, and I must admit that I have been hammering away to relatively little avail. I think that there is a case--although I am clearly advised that the courts would be under no difficulty about this matter--for me to look to see whether we can clarify this point, to make it absolutely clear in somewhat different wording that there is a specific harm test, whether the prosecution is relying on the contents of the disclosure or on the suggestion that the disclosure itself causes the specific harm.
Mr. Gorst : I ask my right hon. Friend to clarify another point relating to the EEC. If a disclosure passes the test of damage, and so on, but it subsequently emerges that information was available not only from a Whitehall source but from a source in Brussels, will it be a defence to say that the information came from a source not covered by the Official Secrets Act? I also ask my right hon. Friend to enlighten me as to precisely what will be the status of a Member of the European Parliament who raises matters in the arena of the European Parliament. He must surely be privileged, as we are, being an elected representative.
Mr. Hurd : As to my hon. Friend's first point, the prosecution has to prove that the disclosure was of British official information which passed the harm test or satisfied the test of the law. Obviously, it is not an offence under the Bill to disclose the secrets or the official information of other Governments. If the defendant could prove that he obtained the information that he disclosed from somewhere else, that is nothing to do with the Bill or with the jurisdiction of the British courts.
On my hon. Friend's second point, I hesitate to get into a debate on the privilege of MEPs, because that is not a subject on which I am an expert, although tomorrow we may hear a little more about the privilege of right hon. and hon. Members of this House. Nevertheless, my hon. Friend makes a valid point and I will inquire into it.
Mr. Budgen : My right hon. Friend mentions the test of harm. To whom will the harm be caused? Let us suppose, for the sake of argument, that there was a revelation that there had been a gross over-claim for the number of olive trees in Sicily, and it was alleged that the Italians were conniving at a gross fraud by their nationals in relation to the common agricultural policy. I have no doubt that my hon. Friend the Member for Hendon, North (Mr. Gorst), with his affection for the EEC, thinks that such a thing is most unlikely. Let us, however, make the unlikely assumption that the Italian state connived at that kind of fraud. If someone revealed that fraud, would it be considered harmful to the EEC, or to our relations with the EEC, or to the British national interest? Such matters, which my right hon. Friend talks about in a very general way, ought to be more closely defined.
Mr. Hurd : Such a disclosure would have to pass one of the tests of harm in the Bill. The prosecution would have to show that there was jeopardy to United Kingdom interests abroad. In the hypothetical case that my hon. Friend makes, he--or somebody else--would resolutely say that, on the contary, United Kingdom interests abroad were enhanced by disclosure of some hanky-panky over olive trees in Calabria, and there would be an exciting case. It is extraordinarily improbable that such a case would ever be brought. My hon. Friend's ingenuity seems to have deserted him on this occasion as he has not produced a particularly good argument.
Having given an assurance that we shall seek to clarify a point that has caused fairly continuous trouble, I re-emphasise that our intentions are clear and we are advised that our wording is absolutely clear. Nevertheless, we shall see if we can improve upon it.
Mr. Nigel Spearing (Newham, South) : Before the right hon. Gentleman leaves the subject of harm or damage in relation to international organisations and to the EEC in particular, I will give him another example to consider. In the Council of Ministers, there is a rule of notional confidentiality. There is no specific account, such as Hansard, of what goes on there. It could be construed that any revelation of a British Minister's approach within the Council of Ministers would harm British interests.
In the newspapers recently, there has been a dispute between one ex- Minister and another Minister over what happened in the Council. Is such a revelation really damaging to British interests as a whole, even if it shows that the Government are not doing what they say that they are doing? Is that not an example of how some ambivalence can arise in respect of the damage done by a revelation within the EEC, and proof of why such a provision should not be in the Bill?
Mr. Hurd : That seems even more far-fetched. I repeat that there could not conceivably be a prosecution under the Bill on the ground of embarrasment to a British Minister. That is not a criterion. [Interruption.] This is part of the point of the legislation. We are depoliticising the process by inserting the test of harm and leaving the decision to a jury. That, in practice, may be one of the main effects of the Bill. I do not think that the ordinary sort of argument about what happened in the Council of Ministers, with which the hon. Gentleman and I are both familiar--a healthy exchange of accuracies and inaccuracies--has anything to do with the Bill. The question has been raised--not very forcefully this evening, but it has been raised outside--of what constitutes an international organisation. My hon. Friend the Member for Southend, East was scornful about what he regards as a tautology in clause 13(1), but it clears up a point that has been of concern to my right hon. Friend the Member for Worthing (Mr. Higgins). There has been a certain amount of anxiety that we might include organisations that were not intergovernmental. Clause 13(1) makes it clear that that is not the case. Here, again, I am advised that a little further clarification would be desirable, although it is a tiny point. I do not expect to gain any great popularity in this regard, but I think that there is a case for a small amendment to put the matter beyond any possible doubt.
Column 429a distinction between the European Commission and the European Parliament? It could be argued that because the Parliament is an elected Assembly it is not the Government who are represented there, so it does not fall under the definition in clause 13(1) of an international organisation--the Parliament, as opposed to the Commission.
Mr. Hurd : I should like to examine the hon. Gentleman's specific point about the European Parliament. He put it concisely, and although I do not wish to concede it I shall certainly give it consideration.
Having listened for many years to my hon. Friend the Member for Southend, East on the subject of Europe, I always thought that he regarded it as an international organisation and felt that the further at arm's length we could keep it, the better. But the drift today was different. I think that, partly for the reasons given by my hon. Friend the Member for Derby, North (Mr. Knight), it would be wrong and, indeed, quixotic to exclude an international organisation--which the EC certainly is--simply because we have more intimate dealings within it than within other international organisations to which we belong. The Bill will cover EC information, not to protect the interests of the Community but to protect this country's interests abroad.
The information that we receive from the European Community is, of course, of great volume, as all who serve on the Select Committee know, but it falls into three main categories. The bulk of it is not confidential, and is therefore not received in confidence and is completely outside the scope of the Bill. The disclosure of much that we do receive in confidence would, under the White Paper scheme, have been an absolute offence. It was partly because of that that we were persuaded to drop the argument. There is now a harm test, and I think--although I cannot be specific--that the bulk of information received in confidence from the EC would fail that test.
I do not agree with the point that the hon. Member for Caithness and Sutherland majored on--that in some way we are clawing back a great deal of information which would be liberated from the criminal law under the other provisions of the Bill. That cannot be so if he accepts what I have said about clause 3(3) and the harm test. For instance, the hon. Gentleman mentioned food safety. There might well be EC documents about food safety, which is a matter for discussion by the EC. It is conceivable that we might receive certain documents in confidence--I am not referring to any particular documents--and it might not be a good idea for civil servants to disclose the contents of such documents, but I shall not go into that.
If a document dealing with the issue of a Cabinet paper is clearly outside the scope of the Bill, I do not understand how an EC document would pass the harm test relating to
Column 430United Kingdom interests abroad. Although the hon. Gentleman might be able to produce hypothetical examples where that might happen, the bulk of EC documents and discussions deal with domestic matters such as transport, food safety, and so on, and there is no way in which they would pass the harm test in the Bill.
Mr. Higgins : My right hon. Friend has already agreed to find out whether the European Parliament would be classified as an international organisation under the Bill. I find it somewhat extraordinary that that point has not already been dealt with. What is his view of the status of the European Commission?
Mr. Hurd : I am clear that the European Parliament is within the scope of the Bill as drafted, but I have promised to look at the matter in the light of what has been said. Clearly, the European Commission is and should be within the scope of the Bill. Returning to the point raised by my hon. Friend the Member for Derby, North, the Commission frequently negotiates with other states on behalf of the European Community. That is one reason why it should be included in the Bill.
Mr. Teddy Taylor : Is my right hon. Friend saying that the European Commission is to be classified as an international organisation under the Bill, despite the definition in clause 13(2) which refers to member states? Surely that cannot be the case. If it is, what is the position of a former British civil servant who is employed by the Commission as a European civil servant and obviously has loyalties there, who may wish to reveal something that could be prejudicial to Britain but is in the interests of the European Community?
Mr. Hurd : On the first point, the European Commission is clearly an organ of the European Community, which is clearly an international organisation. Bodies such as the NATO secretariat and SACEUR are comparable in that they are central organs of an international organisation and therefore are and should be within the Bill. My hon. Friend asked me a specific question about former Crown staff. A former Crown servant working for the Commission in Brussels remains covered by the provisions of the Bill in regard to information that he acquired while he was a Crown servant here--that is the position under the present law and under the Bill--but information that he acquires through his work for the Commission is not covered by the Bill for the reasons that I gave earlier.
I hope that I have covered the points raised in the debate and in the amendments. I believe that the principles of clause 3 as drafted are correct. I do not accept the view of my right hon. Friend the Member for Worthing that the basic principle has been eroded by the passage of time and by the conduct and progress of international relations. There is a principle that needs to be safeguarded and that is worth the retention of some intervention by the criminal law--I say some intervention because of the harm test. In regard to the difficult point about the harm test--the fact that the prosecution might argue that the disclosure itself is doing the harm--which has been the kernel of the debate, I have undertaken to re- examine the possibilities of clarification and to reconsider one minor point. I hope that in the light of those replies and those undertakings the Committee will feel that we have not done too badly.
Mr. Alistair Darling (Edinburgh, Central) : The Secretary of State appears to be telling us that the provisions of this clause are not new and, because section 2 of the 1911 Act covers just about everything, this must be an improvement. However, clause 3 appears to be breaking new ground. It singles out international relations--a very wide definition of international relations--for a new form of secrecy.
As the Secretary of State, for the first time this evening, has been good enough to say that he is prepared to look again at certain points, I suppose that we should welcome that. It is in that spirit that I press him further in the hope that he will look at them more than he has agreed to do.
Clause 3 illustrates the real difficulty between the national interest and the Government interest, because the two appear to be confused. What is it that we are trying to stop? The right hon. Member for Chesham and Amersham (Sir I. Gilmour) said that the Secretary of State appeared to have a rather quaint view of international relations. Many of us might subscribe to the view that we should safeguard those bits of information which might be important to defence or the prevention of criminal activities. However, this clause goes much further than that.
Let us begin by looking at clause 3(2) to see what it is that is damaging. It says that a disclosure is damaging if
"it jeopardises the interests of the United Kingdom abroad, seriously obstructs the promotion or protection of those interests".
That is very wide. Indeed, clause 3(2)(b) provides that any disclosure would be damaging if it was likely to do those things. I wish that the Secretary of State would stop using the term "harm test," because he makes it sound as though there was some sort of harm test. One can see from clause 3(2) that it is easy to transgress the terms of that clause so that an individual could be brought within the scope of it and so be liable to prosecution.
We are told in clause 3(1)(a) that a damaging disclosure is "any information, document or other article relating to international relations".
International relations are not defined in a narrow way, but are unspecific. More than that, in subsection (1)(b) we are told that a damaging disclosure can be
"any confidential information, document or other article which was obtained from a State other than the United Kingdom or an international organisation."
Whether the Home Secretary likes it or not, that includes the EEC. What is confidential information? It has not been referred to very much so far.