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Column 343example, be called Graham Greene, Alexander Pope or George Orwell and he might communicate within the terms of the Bill, making "a disclosure of information intended to be taken by those to whom it is addressed as being such a disclosure."
He might use the sort of coded communication often inherent in the works of the people whom I mentioned--for example, "Animal Farm" and "Gulliver's Travels". Surely he will have to go to prison as a result of that sort of communication.
Let us suppose that a notified person was suspected by the security services of making the odd disclosure and this was of concern to the security services. What would be the position if a security officer, unknown to the notified person, struck up casual conversation with him in a pub for the deliberate purpose of encouraging him to make a disclosure? If it happened, it doubtless would be defended on the grounds of the needs of security, but perhaps the Minister will confirm that it would constitute entrapment nonetheless.
As some of us know, drink tends to loosen some tongues, and with the encouragement of an experienced and friendly stranger it is not far-fetched to imagine that sort of entrapment being attempted or actually occurring. The notified person who has been entrapped then goes home and says to his wife, "I met a nice man in the pub--who was ever so interested in what I did for a living--you must meet him," but before that can happen, the law will arrive and a prosecution may be put in train.
Can the Minister assure the House that in circumstances where entrapment is used in the manner that I have described, no prosecution could follow? I do not think that he can safely give that undertaking in view of the way in which the provision is drafted.
Mr. Bermingham : As entrapment is not a defence known to English law, we shall be laying ourselves wide open to the possibility of people being enticed into criminal offences on bogus and spurious points without a defence being available to them. This makes the position far worse than currently exists.
Mr. Corbett : I am grateful to my hon. Friend--perhaps I should refer to him as my hon. and learned Friend--for his legal advice, the more so because he is not charging for it at the moment. I should have been more careful in my choice of words. The Minister will appreciate the point that I was making.
What would be the position of a person such as I who, before being allowed to do national service, was required to sign the Official Secrets Act?
I understand that once signed, the piece of paper cannot be unsigned--one cannot pull the signature back. From the earlier part of the Bill, we know that a signature of that
Column 344sort will follow me into and beyond the grave. Let us suppose--following the example of the hon. Member for Torbay- -I wrote a fictional book in which I purported to make
"a disclosure intended to be taken by those to whom it is addressed as being such a disclosure."
There would be no point in writing it in any other way if one was writing that sort of book. Suppose that I unwittingly and accidentally disclosed something which was true, and to that extent caused some perceived harm or potential harm to the security interests of the United Kingdom, although I could not have known it. Could I, or any other person in those circumstances, be prosecuted? Never mind what possible defence there might be, will the Minister say whether such an unwitting accident could lead to prosecution? It would seem from the way in which the clause is drafted that that could be the case.
I suspect that the Minister will say that in the three circumstances that I have outlined there would be no prosecution. Doubtless he will say that I have overlooked the test of harm, but there is no test of harm in the clause, even though the Minister's interview with The Times, and perhaps on other occasions when he listed the famous nine hurdles, he gave the impression, no doubt accidentally, that in every case there would be a harm test.
Mr. Corbett : I do not know what has got the Minister so excited about journalists. I was speaking basically about notified persons and just threw in the example of writers. Let us suppose that the author of the fictional book which makes the unwitting disclosure is a notified person. What would be the position in those circumstances?
What is so obnoxious about the Government wheeling in this new offence--an offence which is not in the original Act--is that they seem unwilling on the face of the Bill to distinguish between the idle barroom boast and the release of information which causes or could cause serious injury to the public interest. The Minister need not tell me that that is not so, because, on my reading, that is what is in the Bill. It is the Bill with which we are concerned, not with remarks from the Minister which will find their way into Hansard. In reality, the catch-all provisions of the Act that the Bill seeks to replace are being extended. I hope that on reflection the Government will admit that this is potentially stupid, time- wasting and money-wasting, and that they will agree to remove the provision and return to the offence involving disclosure of information which would cause serious injury.
Mr. Baldry : I am sure that the hon. Member for Birmingham, Erdington (Mr. Corbett) does not mean this, but, if his amendment were passed, we would introduce a liar's charter into the legislation. It would mean that a defence counsel in the Crown court might say, "Your honour, my client accepts that he is a security and
Column 345intelligence officer as defined by section 1 of the Act. He accepts that he is a notified person. He accepts that he has written a book upon his experiences as a security and intelligence officer. But everything in that book is a lie. Therefore, he does not come within the provisions of the Act."
Let us relate that defence to the experiences which we have had with Peter Wright and others. When we had the debate a couple of weeks ago on the Right of Reply Bill, I think the whole House agreed that often the media and the press are not capable of distinguishing between fact and fiction, fantasy and reality. A security officer who purports to write about his experiences, whether they are fact or fiction, can do just as much damage.
If one makes a judgment that a limited number of people--security and intelligence officers--should have a ring fence, and if they are allowed to publish information about their work and then say in court, "I have a defence against prosecution because what I have written is not true ; it is a lie," it makes the position worse for the Crown. The Crown then has to prove to the jury, so that the jury is sure, that the allegations which the man is making are true. It further underlines the damage that that man might be doing by his revelations.
The hon. Member for Erdington seems to think that there is some jest in the prosecution having to justify to the jury beyond peradventure that what the intelligence officer disclosed was true. That underlines the harm that may be done to the community by the revelations. If one takes a decision, as the Committee has done, that security and intelligence officers should not disclose information coming from their work, one has to see that through. Therefore, the amendment, if passed, would make the clause a liar's charter. I am sure the hon. Gentleman did not mean it to be so, but that would be its effect.
Mr. Robert Maclennan (Caithness and Sutherland) : If there was any doubt about the sense of the amendment proposed by the hon. Member for Birmingham, Erdington (Mr. Corbett), it was removed by the speech that we have just heard from the hon. Member for Banbury (Mr. Baldry). The idea that people should be sent to prison for two years for lying does not normally commend itself to the House of Commons, which is concerned about the rule of law.
The subsection does not provide a defence ; it creates an offence. It is a bizarre suggestion that it should be possible to impose a lifelong duty of confidentiality on people which makes it impossible for them to say something which is not true. It is a farcical proposal and the hon. Gentleman has not made it any less farcical by his intervention. I hope the Minister can clarify what the Government think they have in mind.
Mr. David Winnick (Walsall, North) rose --
Mr. Gorst : I want my hon. Friend, when he replies, to give me an assurance that no work of fiction, no work of allegory, no poem and no satire, however much based on truth, will be caught by the provisions of the paragraph under discussion.
Mr. Rupert Allason (Torbay) : I am very concerned. First, I have to declare an interest as an author. Until this year I have always written non -fiction. I propose to write some fiction this year. This is not a commercial ; I want to ask the Minister a serious question. I shall give him three examples of respected intelligence officers who had long careers, two of them in the secret intelligence service and one in MI5. John Le Carre , or David Cornwell, and Kenneth Benton were in the secret intelligence service for a number of years. They retired from that occupation and neither of them has ever written any non-fiction. But it is surely the case that part of their attraction is that they are perceived to be speaking from the inside. Is it not the case that the subsection would directly affect them, particularly as their publishers are adept at pushing that kind of literature by saying that although it is fiction, it is also "faction"--fact dressed up as fiction?
Perhaps I may give the Minister another example from the security service. John Bingham, who had a long and distinguished career in the security service and who died last year, might well have been caught, I suspect, by this provision. It is ludicrous to legislate for people writing fiction.
Mr. Nicholas Budgen (Wolverhampton, South-West) : I had intended to play no part in the details of the Bill. It was not until the matter was guillotined that I felt that my hon. Friends who were taking a proper interest in it needed a little help.
I cannot understand the argument put forward by my hon. Friend the Member for Banbury (Mr. Baldry). If we take the Home Secretary's proper view that this is a matter for a jury, one of the things that juries are required to do is to decide whether people are telling lies. If, on the other hand, the Government's position is that it would be embarrassing for the prosecution to have to prove its case, let them say that, and not pretend that the proper discipline of persuading a jury is the one thing that informs them. I fear that when my hon. Friends encouraged my hon. Friend the Member for Banbury to make that intervention, they harmed themselves greatly.
Mr. Bermingham : I do not intend to say much. I raised a point in the speech of my hon. Friend the Member for Birmingham, Erdington (Mr. Corbett). I am extremely concerned that we run the risk of encouraging entrapment, because, as I said earlier, that is unknown as a defence in criminal law. Therefore, a man will be denied a defence simply because he has been induced into committing an offence, even though he may not have known at the time that he was committing an offence because he was becoming the recipient of something which he should not know. He in turn may pass the information on. Let us face it ; very few people wander the land with a copy of Archbold and a full index to the criminal law under their arm. This is an intensely sensitive point.
I am further concerned--I raised the point on Monday night in an intervention, and I raised it earlier today, and if the hon. Member for Banbury would listen he might receive a little bit of education-- [Interruption.] I say that
Column 347with great care because it is so easy to be glib about the subject. [Interruption.] Does the hon. Member for Solihull wish to intervene as a Whip?
As I was saying--I used this as an example, when I intervened in my hon. Friend's speech, on the question of privilege--we are really getting ourselves into a terrible tangle simply because the Government will not understand that there is a possible defence, which gets us out of every conceivable problem, where disclosure becomes almost the duty of somebody, and then the courts can decide on the question of public duty. That takes us out of all these problems of entrapment, because, of course, such a defence could be raised where somebody had been entrapped. It could be argued very simply--and the jury could be left to decide at the end of the day--that the person had been led unwittingly into an offence. Then, of course, privilege appears. I worry greatly about the situation that will exist when this Bill passes into law, because the Government have shown, by their attitude towards it, that they intend to have their way--as they did with the Security Service Bill, when they did not intend to allow any amendments.
Mr. Hurd indicated dissent.
Mr. Bermingham : The Home Secretary shakes his head. That is perhaps the first piece of good news we have had during the Committee stage of this Bill. If the Home Secretary is prepared to listen to reasoned arguments and to accept amendments, perhaps we will make speedy progress. Perhaps he could indicate in what areas he is prepared to accept amendments.
What worries me is the situation in which someone is told something as a Member of Parliament, and repeats it on the Floor of the House--where, I have been assured, we have absolute privilege. I have to wait until tomorrow night to hear whether the Government seek to interfere with that privilege. I trust not. Information given on the Floor of the House can be broadcast by the media. Of course, it can be broadcast abroad, and even if something had been broadcast all over Europe and the United States it could be an offence to repeat it here.
On the question of entrapment, if only we had the defence that was discussed at great length--I do not intend to repeat all the arguments that have already been used during the Committee Stage--then we would not have any of these problems. It is a simple issue but a very, very important one.
Mr. John Patten : It might be of help to the Committee if I were to outline briefly the Government's attitude to these amendments and then try to answer specific questions that my hon. Friends, and most of all, the hon. Member for Birmingham, Erdington (Mr. Corbett) asked. We all know now where to go for a bit of advice at closing time on a Friday night in Erdington high street.
I should like to draw to the attention of the hon. Gentleman, and, indeed, of the whole Committee, what I
Column 348think is the key word in subsection (2)-- "intended". That is of critical importance in the arguments about this group of amendments. First of all, let me deal with the Government's attitude overall. The amendments would provide a loophole--it is a conscious decision to block that loophole, as the White Paper said--through which members of the security services and those working with the security services could damage the work of the services. As my hon. Friend the Member for Banbury (Mr. Baldry) said, it would mean that the most damaging of disclosures might escape prosecution altogether, since it might not be in the public interest to compound the damage they had caused by confirming in court that the information disclosed was actually true.
Under this offence a member of the security or intelligence services--
Under this offence, a member of the security or intelligence services or a notified person is not liable unless the prosecution can show that he has held out the information he has revealed as being true, or that he has intended that it should be taken as true. We see absolutely no reason why he should then be able to escape the consequences of his damaging action by telling the court that the information is in fact false, and actually challenging the prosecution to prove that it is true. In those circumstances the prosecution would not be able to do so without perhaps making further harmful disclosures about security or intelligence, and, as a result, it would not be possible to pursue the issue.
I now give way to my hon. Friend.
Mr. Budgen : It is an inevitable consequence of a prosecution that the jury will have to know the facts. Once the Government have decided to have this sort of legislation, they will not be able to go on saying "Well, it is too damaging to prove it." Surely they would be adequately safeguarded by having the proceedings in camera and perhaps by means of some surveillance--that may not be the right word--of the jury. But it is not good enough to say, "Well, we really do not think that we can possibly parade these arguments before a jury."
In any case, the disclosure of false information by a member of the security and intelligence services, or a person notified because of the nature of his or her work with the services, can actually be as damaging as the disclosure of true information under certain circumstances, particularly since the Government cannot--
Mr. Allason rose--
--confirm or deny the truth of stories about the work of the services without risking the effectiveness of their operations and the lives of those who rely on them. The removal of this provision in clause 1(2) would actually allow the services to be traduced without challenge or any
Column 349effective restraint by those whose words on those matters must carry particular weight because of the trust that they actually hold.
Mr. Richard Shepherd : I should like to make an inquiry about the way in which this clause is drafted. Does this mean that Mr. John Le Carre is liable to prosecution? He purports to write about things in a fictional way. He is clearly game for prosecution.
Mr. Patten : I was just about to try to deal with points of that sort--and that one was raised specifically by my hon. Friend the Member for Torbay (Mr. Allason). [Interruption.] May I please address myself to the questions that were raised earlier? The hon. Member for Erdington mentioned the man in the Swan. The point that has escaped the hon. Gentleman is that, if this person is a notified person, as he said, they, he or she is in a position of trust. If that trust were abused by making allegations, that person would indeed be committing an offence.
On the issue of entrapment, the hon. Member for St. Helens, South (Mr. Bermingham) was right in his interpretation of the English law, but, of course, under section 78 of the Police and Criminal Evidence Act 1984--I believe that the hon. Member for St. Helens, South served on the Standing Committee--the court may refuse to allow evidence on which the prosecution proposes to rely if it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it, and it is a question for the court in the circumstances of the case.
Mr. Bermingham : Does the Minister not agree that, under clause 78, where the court has discretion to allow or permit evidence, the only evidence that the court would be asked to allow or deny is the evidence of the complainant ; the court could not be told whether the evidence of the complainant was true or false? Therefore, the court would have nothing to rely on in coming to its decision under clause 78. What the hon. Gentleman is saying is nonsense in law.
The third question that was asked by the hon. Member for Erdington concerned the man who writes a novel and gives information unwittingly. That point was picked up by a number of my hon. Friends. My hon. Friend the Member for Torbay was interested in the case of Mr. Le Carre --I regret to say that I have not read many of Mr. Le Carre 's novels--as was my hon. Friend the Member for
Aldridge-Brownhills (Mr. Shepherd). My hon. Friend the Member for Hendon (Mr. Gorst) was interested in works of satire and poetry and whether they might be caught in this way. If the defendant does not have reasonable cause to believe that the information is true, and does not hold it out as true, or intend--that is such an important word--it to be taken as true, he of course commits no offence at all. I accept that it would be absurd if a former member of the security services writing a genuine spy novel were in danger of prosecution simply because some people took his fiction as truth. That is why we require the prosecution to show that it was the defendant's intention that the information be taken as true.
Column 350The Bill does not inhibit the writing of a genuine spy novel such as you, Mr. Walker, or I might read on our holidays from this place, but it will prevent the use of fiction where the real purpose is to disclose fact.
Mr. Allason : This is an important point. My hon. Friend has in effect said that an author will be committing an offence only if he intends what he has written to be taken as fact. In the publishing world, the author produces a manuscript which goes to the publisher, who then produces a dust jacket on which is something called the blurb. That is written by the publisher, not the author. John Le Carre 's next book--I hope that he will not be next in the dock--will unquestionably carry the publisher's blurb saying that the book comes from somebody with inside experience.
Mr. Hattersley : With the passing of two Committee days, we have grown sceptical of the Minister's assurances when they do not relate to the Bill. When he gave his assurances a moment ago that authors of fiction would be covered, he misread the line of the Bill on which the assurance was based. I think that he was reading lines 16 and 17 when he said :
"purports to be a disclosure of such information and is intended to be taken by those to whom it is addressed as being such a disclosure."
Mr. John Patten indicated assent.
"purports to be a disclosure of such information or is intended". Either of the two conditions is enough to prosecute and convict. That is quite different from what the Minister just told us.
Mr. Patten : The right hon. Gentleman will have to read the record tomorrow. What I have said is entirely consistent. It would be a member of the service, or, more likely, a former member of the service, who would be using the cover of fiction to reveal something that was true, or putting about through some blurb, as mentioned by my hon. Friend the Member for Torbay (Mr. Allason), something which purported to be true and was thus intended to damage the service. Mr. Hattersley rose--
Mr. Patten : I shall not give way. I have answered the right hon. Gentleman in terms. The right hon. Gentleman is fond of mistaking disagreement for misunderstanding. He has used that line throughout our discussions.
Mr. Maclennan rose--
Mr. Patten : No, I shall not give way for a moment ; I have given way a great deal. I shall give way later. In Committee, both upstairs and on the Floor of the House, it is normal to allow an hon. Member who has given way to respond to the questions that he has been asked.
That is why we require the prosecution to show throughout that it was the defendant's intention that the information should always be taken as true.
Sir Ian Gilmour : My hon. Friend has given way a great deal and has shown the Committee every consideration and courtesy. I am still slightly worried about his answer to the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley). At least twice earlier, he stressed the importance of the word "intended". That is obviously important for the last phrase of the subsection, but I cannot see how it has any relevance at all to the first part. If the word were "and", my hon. Friend's defence of the clause would be very able, but as it is "or", my hon. Friend seems to be rather wide of the mark.
Mr. Patten : The right hon. Gentleman and the hon. Member for Erdington have got themselves into a terrible state of confusion about this. We recognise, and we made it clear in our White Paper, that this provision is not at present covered by section 2 of the Official Secrets Act. We believe that without clause 1(2) there would be a serious loophole in the Government's defences. Since the Government have produced the carefully focused and tightly confined provisions of the Bill, I urge the Committee not to allow a flaw in the very area that the Committee should be seeking most to protect. That is why I must ask the Committee to reject the amendment. 5.45 pm
"purports to be a disclosure"
cannot mean the same as the following passage. That cannot mean "intended". The Minister must reconsider that. If he does not, we must be able to interpret it in the way that we are properly doing at present.
The Minister also appears to be misreading another aspect--that of the agent provocateur. He seems to be doing a disservice to some of his own people in the field who, as part of their work, use precisely the same tactics that are dealt with in the clause and which the Government are now saying are illegal.
Thirdly, there is the development of "faction"--the kind of writing that bases itself upon an accuracy in milieu--an accuracy in the atmosphere and in the tools and methods that are employed. John Le Carre is accurate in many ways. There are others. The Home Secretary himself is almost an agent provocateur in relation to the Scottish situation in his novel "Scotch on the Rocks". We may be too sensible to be taken in by some of his characters who purport to be creating the situation in that book, but there are many matters of astonishing accuracy.
One thinks of the cause celebre two or three years ago with the fictionalised version of the Etaples mutiny, when all hell broke loose because people insisted on treating every word as if it purported to be, or was intended to be, the truth. In fact it did purport to be, but was not intended to be, not an accurate version but a fictional version. Yet it was undoubtedly taken as a disclosure of fact by those people to whom it was addressed.
One thinks of those who have been close to the Secret Service. Graham Greene's novel "Our Man In Havana" has the extraordinary theme of the man in Havana who
Column 352keeps his job by purporting to be providing drawings and sketches of a new secret weapon, which turns out to be a vacuum cleaner. The fictionalised version of "Tumbledown" was also close to fact and was taken to be fact, in the sense that the feel of the thing was right, even though individual episodes and language were not true. This is a grey area that the Minister has ignored and it is a dangerous area to leave as it is in the Bill.
One thinks of the Prime Minister's favourite reading. When she was asked what she was reading, she said that she was re-reading Frederick Forsyth's novel "The Fourth Protocol". As my wife pointed out--if I may bring her into this--the Prime Minister must be the only person in Britain who has read a whodunnit, knows who done it and then has to read it again to make sure. We get such examples in Frederick Forsyth's novels.
This subsection is an offence to accuracy and grammar, and must be withdrawn. It seems to drive a horse and cart through some of the other subsections of clause 1.