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Mr. Hind : The hon. Gentleman has missed out the most important point. He should read the last part of clause 3(1), which refers to "information or a document or article which is or has been in his possession by virtue of his position as a Crown servant or government contractor"--
in other words, documents which have come into his possession as a consequence of his position, and in confidence. That is the purpose behind it.
If one looks at clause 3(6) for a definition of confidentiality, one sees, among other things, that it says :
Column 432"while the circumstances in which it was obtained make it reasonable for the State or organisation to expect that it would be so held".
We can see exactly what would happen. If someone suddenly revealed that something untoward was going on, all that would be necessary would be for an official, a Government or an agency to say, "We expected that to be confidential," and it would then be brought within the terms of this clause. That is thoroughly undesirable. The Secretary of State says that clause 3(3), which must be one of the most clumsily drafted clauses in this Bill--that takes some beating when we consider some of the other clauses which we have discussed--is a guide to the prosecutor. He says that any information, article or document within clause 3(1)(b)--that is, whether it is confidential or not--may be regarded for the purposes of clause 3(2)(a)- -that is, whether or not it is likely to jeopardise the interests--as such if its unauthorised disclosure would be likely to have any of the effects mentioned in the clause. That is a guide to the jury, not to the prosecution. That is important. If somebody were to be prosecuted under the clause, the judge would say that the jury must have regard to subsection (3) to see whether any information may be regarded, for the purposes of the rest of the clause, as being confidential.
I fear that we will see prosecutions being brought under the clause, widely couched as it is, in cases where somebody has revealed communications between the EEC and this country. We are not talking only about organisations such as NATO or Interpol but about matters currently under discussion between EEC Ministers. Somebody may care to make such information public. A great deal of information is being exchanged in the Trevi group of Ministers between the Home Secretary and his counterparts within the EEC. It does not involve simply fisheries and food. The Shengan group of countries is discussing all sorts of methods to restrict the movements of people within the EEC and in and out of the EEC. It may be that such information should be made known. Yet, under this clause, to do so would be a criminal offence and render the person disclosing the information liable to prosecution.
The difficulty is that the clause covers items which are not simply matters of security. They are matters that might be the cause of some embarrassment. The Home Secretary says that that is not so, but the Government may decide, through the Director of Public Prosecutions, that a prosecution is necessary simply to stop the flow of information.
The clause is drawn in wide terms. It does not matter what the Home Secretary says to explain this clause or any other clause. Ultimately, a judge will have to direct a jury as to whether it should convict and the judge will have regard to what the statute says, not what the Home Secretary or anyone else said during the debate or what a press release might say. The statute is the key element-- [Interruption.] It is all very well for the Minister of State to say from a sedentary position that he knows all that. Earlier today I wondered whether he did know all this because, in some of the clauses with which he was dealing, it was far from clear what it was intended that the statute should mean. His efforts, whether to clarify matters or to obfuscate, did not assist.
I understand that the Home Secretary said that he would look at subsection (3) again. In addition, I ask him to look at the way in which the clause is drafted. I want
Column 433him to ask himself what is the mischief at which he wants to strike. If it is the protection of defence secrets or certain negotiations, it would be better to legislate to stop that information being revealed rather than to have a catch-all clause which translates the worst elements of section 2 of the 1911 Act into clause 3. That is what the clause seeks to do.
The right hon. Gentleman should bear it in mind that a law will work only if it is respected and widely accepted. My fear is that much of the Bill, and this clause in particular, will fall into the same disrepute as section 2 of the 1911 Act simply because we did not have time, and the Government did not have the inclination, to give the clause the consideration it deserved. I hope that the Secretary of State will consider carefully the terms of the clause because, with so much of our lives being governed by the EEC and its directives, it is not good enough to say that members of the British public cannot know what is going on because it is protected by the clause.
Mr. Hind : Most of the public must be wondering whether the Bench from which I am rising is a Government Bench. I want to support some of the aspects of the Bill. While quietly and objectively listening to the debate on this clause, I was beginning to think that it was a quirky idea to want to protect the interests of the country in respect of international relations. Judging from the look of surprise on some of my colleagues' faces, I am not alone in thinking that that is a quirky idea.
Over and over again there has been a failure to grasp the fact that the criminal law is necessary to protect the national interest. International relations are highly sensitive. We are involved with a number of international organisations, as well as with other countries. Negotiations with them are of the essence of our national interests and must be protected.
Right hon. and hon. Members have repeatedly ignored the fact that the Bill contains a test of harm. Many have tried to run down that idea, but it is the crux of the Bill. Civil servants must be loyal to the state ; they must not breach that loyalty and pass on damaging information. The hon. Member for Edinburgh, Central (Mr. Darling) read out some of the clause, but forgot to read the bit that matters. It refers to wrongful disclosure by someone as being any
"information, or a document or article which is or has been in his possession by virtue of his position as a Crown servant or government contractor."
The clause deals with people who come into possession of information by reason of their positions of confidence, and the criminal law should be used against such people. It is an extremely sensible way of dealing with the problem.
It has been alleged that this Bill represents a change from the 1911 Act. Of course it does, but it is a narrowing, not a broadening, change. Most Government activities are covered by the 1911 Act--not so by the Bill. The sooner hon. Members realise that this is a liberalising measure, the better ; and the better the public will understand it--
Mr. Aitken : Where, in the 1911 Act, is there any reference to international organisations' secrets, or to its being part of the British Government's duty to protect the secrets of foreign Governments or organisations? Surely these are enlargements of the legislation's scope.
Column 434international organisations there were in 1911. There was no EEC or NATO, there were no major international organisations--they were all created in recent years. My hon. Friend the Member for Southend, East (Mr. Taylor) spoke about the EEC. Why should it be treated any differently? [Interruption.] Opposition Members may laugh, but there are 12 member states in the EEC with which we carry out delicate negotiations. Those negotiations need the same protection as is afforded to non-EEC countries' dealings with our country. What is all the fuss about?
There is no real reason why the EEC should be singled out for different treatment. We are involved with it in many ways, and there is no need to exclude it from the clause.
Mr. Budgen : I am sure that my hon. Friend is trying to help the Government, but he must see that there is a conflict of loyalty here. Our former colleague Sir Leon Brittan was a distinguished Cabinet Minister. As such, he swore an oath of loyalty. As a Commissioner, he has now sworn an oath of loyalty to the EEC, an oath which, as he would put it, supersedes the narrow, outdated nationalistic oath that he swore in this House. He may feel it necessary from time to time to disclose information that he obtained on a narrow, nationalistic and parochial basis.
These may be regarded by many people as small points. Now that I see that my hon. Friend the Member for Lancashire, West (Mr. Hind) is being handed a piece of paper from the Government Front Bench, perhaps he will answer this querry. To pretend that there is no case is nonsense, and now that I have given my hon. Friend an opportunity--
Mr. Hind : The arguments adduced against the clause have been out of all proportion to the simple and straightforward principle behind it, which is that the country is entitled to expect Parliament to provide protection for matters of confidence which affect our international relations and therefore the interests of the nation. The Bill provides that. The clause meets that requirement, and the amendment should be rejected.
Mr. Richard Shepherd : I do not think anyone objects to the protection of some information in connection with international relations, and to that end my hon. Friend the Member for Lancashire, West (Mr. Hind) has not understood the amendment. While we accept that some information should be protected, the debate has been about the wide way in which the clause has been drafted.
It is an extraordinary clause. I have satisfied myself that it was a case of the Foreign and Commonwealth Office contending for the world, and by some peculiar mismatch of Whitehall dealing, it has got everything for which it asked. Indeed, it got so much that it is embarrassed by this richness of opportunities to prosecute and to prevent the publication or dissemination of information.
I do not agree with the Home Secretary's claim that there is not a new class of offence here. Information given by international organisations worries us. We have banged on over this matter--I use that expression deliberately--since the White Paper was published. The explanation
Column 435given so far of what is an international organisation is not satisfactory. We are grateful, therefore, that the Home Secretary has promised to provide some clarification.
This series of amendments suggests that these international organisations should be listed. The Foreign Secretary will not list them because, he has told us, it would not be practicable to do so. When, earlier this year, my hon. Friend the Member for Southend, East (Mr. Taylor) asked the Foreign Secretary to list the international organisations with which we have had dealings in the last year, that was not possible either, so we remain cautious about the meaing of "international organisations."
The United Nations must be an international organisation. We know about the recent problems of UNESCO and the activities of Mr. M'Bow. Lots of information currently reported by the British press is leaked information. That has been a tradition of this country, thank goodness, and it is part of what makes this a democracy and enables us, across the Floor of the House, to hold Governments to account and to question them on, and contribute to, foreign policy.
That flow of information must continue. The provision on international organisations has been drafted with a sloppy damage test. Not every judge or jury will be as wise or as understanding about the intentions of the legislation as my right hon. Friend or the Government. A jury might be persuaded by a barrister who relied on the fact that the damage test was satisfied because of the reference in clause 3(3) to the phrase :
"by reason of the fact that it is confidential".
All those are matters of legitimate concern.
Amendment No. 25 proposes that the Government list the international organisations. If a criminal prosecution may be triggered, it does not seem unreasonable that we should know which organisation released the information which might jeopardise the interests of the United Kingdom.
Mr. Whitney : When my hon. Friends talk about information coming from international organisations they are neglecting the fact that the disclosure must be damaging. In a throwaway remark, my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) suggested that it was a sloppy damage test. Subsection (2)(a) is not sloppy. My hon. Friend has suggested that the word "seriously" should be removed. That would make the provision sloppy. It is not sloppy at the moment.
Mr. Shepherd : It is always a joy to respond to my hon. Friend, a former diplomat. As to the point he made about the word "seriously", I wanted to know why the Government could have "seriously obstructs" but could not have "serious injury" to the interest of the United Kingdom abroad. The debate about whether the provision
Column 436is sloppily drafted has consumed the Committee for two or three hours. I think the overwhelming view is that it is drawn widely. If my hon. Friend had been here earlier, he would have appreciated the anxiety about clause 3(3) to which my right hon. Friend the Home Secretary has tried to respond by clarifying the matter. Although we are all wrong and my right hon. Friend is right, he accepts that the matter requires clarification. I am grateful for that, and I do not want to minimise its importance.
As to international organisations, we go back to cocoa marketing and the International Tin Council, which involve representatives of the Malaysian Government and a cartel. Is OPEC, which rigs the oil market, an international organisation under the Bill?
Mr. Maclennan : I want to support the hon. Gentleman's point about the unsatisfactory harm test. In a real sense, clause 3 has no harm test because, under subsection (2)(b), the leaked document does not have to cause harm : it just has to be a document that was likely to cause harm.
The whole clause is important not just because of the disciplinary procedures within the Civil Service or the Foreign Office but because it relates to clause 5, covering the other groups and organisations that may become liable to prosecution as a consequence of the definition of international relations. That is why we are anxious to get the definition right. I do not believe that we have got it right. It requires further narrowing. I should like to think that, in the spirit of being prepared to accept some points on this, my right hon. Friend will go further than he has hitherto.
Mr. Rooker : The United Kingdom is not a member of OPEC. Given that the Foreign Office will not publish a list of the international organisations to which the Bill will apply, it will be only international organisations of which the United Kingdom is a member. That is the definition in clause 13(1). There is nothing for nothing in the world. If the United Kingdom is a member of an international organisation, it will have to pay a subscription. Money will flow from the British Treasury to help fund our membership of the international organisation, which would not be the case with OPEC. Therefore, what is the problem about the Home Secretary arranging for a list of the international organisations to which the United Kingdom pays subscriptions--all of which, I presume, would at some time send confidential information to the United Kindom? Where money follows, surely that is the list that we want. But that would not include--
That list would not include OPEC.
Mr. Shepherd : I am most grateful for that point. I had not taken on board the fact that we had to be a member of an international organisation. This is what I am anxious about. If we do not have to be a member, I think it can include OPEC, which is a market cartel whose purpose is to fix the price of oil, and that may be against the domestic
Column 437interests of our own citizens. It seems to me that it is awful to reach out and support organisations that we may not want to support. Foreign affairs is one of the most important elements of our sense of citizenship. It is our expression overseas of who we are. Where we stand on foreign affairs, foreign relations, international organisations, is part of our national morality, and the information that we require in order to make a judgment on that goes far beyond the constraints in this piece of legislation. I hope that, in the end, the Home Secretary will see the force of the point that this is a legitimate area that requires widening in the interests of public affairs in this country.
Mr. Teddy Taylor : We greatly appreciate the fact that the Home Secretary is prepared to look again at the most worrying aspect of this clause. This is the first occasion on which he has felt able to make such an offer. When the hon. Member for Caithness and Sutherland (Mr. Maclennan) and I are on a joint deputation, it is quite clear that there must be something serious about. We should certainly thank the Home Secretary very much for his offer, and I hope that something useful will come from it.
I hope that, when he is reconsidering what we regard as a major problem in the Bill, which would create an injustice, my right hon. Friend will have another look at what constitutes an international organisation. How can we pass a law to create a penalty against people for revealing something emanating from an international organisation when none of us in this Chamber knows now--I challenge any hon. Member to say--what an international organisation is. We have been told that it is defined in clause 13(1), which says that it is an organisation of member states. Anyone who thinks that should look at clause 13(2), which says that, for the purposes of some parts of this Bill,
"an international organisation includes any such organisation whether or not one of which only States are members and includes a commercial organisation."
So it is quite clear that when we refer to an international organisation, we are talking of something much, much wider.
Mr. Greg Knight : Does my hon. Friend not consider that the idea of a schedule or list is also unworkable, because no provision is made for altering that schedule or list? As I understand the position, new primary legislation would be needed to add names to the list.
Mr. Taylor : I agree entirely that we cannot have a list, but surely we should have a definition. We cannot say that an international organisation is either a group of member states or else something that is not a group of member states, but includes people who are not member states, and can be a commercial organisation. I suggest that "international organisation" could mean anything at all, and I appeal to the Home Secretary, he having kindly said that he will look at one of our worries, to look at this one also. May I ask my right hon. Friend to look seriously at the question of conflict of interests? He has confirmed that the European Community and the European Commission are both covered as international organisations. What on earth is the duty of a former British civil servant, obliged not to divulge anything in the national interest, who then had to divulge it as a European civil servant or Commissioner, saying that his obligation was to the
Column 438European Community? What would be his position if he were to reveal something that was damaging to the United Kingdom in the wider interests of the Community?
The Home Secretary has said--correctly, I think--that this clause needs to be looked at again. We are grateful to my right hon. Friend for what he has said. I hope that he will also look at those two points. In view of his kindness, I shall not press amendment No. 32 to a Division, but I understand that hon. Members may seek to divide the House on amendment No. 24.
It being Twelve o'clock, The Chairman-- proceeded, pursuant to the order [13 February] and the resolution [15 February], to put forthwith the Question necessary for the disposal of the business to be concluded at that hour.
Question put, That the amendment be made :
The Committee divided : Ayes 168, Noes 285.
Division No. 97] [12 midnight
Abbott, Ms Diane
Banks, Tony (Newham NW)
Barnes, Harry (Derbyshire NE)
Beith, A. J.
Brown, Ron (Edinburgh Leith)
Bruce, Malcolm (Gordon)
Buckley, George J.
Campbell, Menzies (Fife NE)
Campbell, Ron (Blyth Valley)
Campbell-Savours, D. N.
Carlile, Alex (Mont'g)
Clarke, Tom (Monklands W)
Clwyd, Mrs Ann
Cook, Frank (Stockton N)
Davies, Rt Hon Denzil (Llanelli)
Davis, Terry (B'ham Hodge H'l)
Dunwoody, Hon Mrs Gwyneth
Evans, John (St Helens N)
Ewing, Harry (Falkirk E)
Ewing, Mrs Margaret (Moray)
Field, Frank (Birkenhead)
Fields, Terry (L'pool B G'n)
Foot, Rt Hon Michael
Garrett, John (Norwich South)
Gilbert, Rt Hon Dr John
Gilmour, Rt Hon Sir Ian
Godman, Dr Norman A.
Golding, Mrs Llin
Grant, Bernie (Tottenham)
Harman, Ms Harriet
Hattersley, Rt Hon Roy
Healey, Rt Hon Denis
Heffer, Eric S.
Hogg, N. (C'nauld & Kilsyth)
Hughes, John (Coventry NE)
Hughes, Robert (Aberdeen N)
Hughes, Sean (Knowsley S)
Jones, Martyn (Clwyd S W)
Kaufman, Rt Hon Gerald
Kinnock, Rt Hon Neil
Lestor, Joan (Eccles)
Macdonald, Calum A.
McKay, Allen (Barnsley West)
Mahon, Mrs Alice