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Sir Nicholas Bonsor (Upminster) : I am grateful for the opportunity to intervene briefly. I followed what my hon. Friend the Minister said with great interest and I have some sympathy with a great deal of it, but he is wrong in what he appeared to be saying about the technical effect of subsection (2) containing the word "or", which he appears to have represented as "and". I shall read out the subsection so that it is on the record :
"(2) The reference in subsection (1) above to disclosing information relating to security or intelligence includes a reference to making any statement which purports to be a disclosure of such information".
In effect, there is a full stop there, because it then says "or", and as an ex-practising barrister, I believe that what follows does not qualify what has been said up to that point.
Mr. Budgen : Does my hon. Friend agree that proper sympathy should be given to the Government Benches on this? In the Wright case, it was obvious that every judge before whom the case came had a different interpretation of the law, and it is possible for many people in good faith to have wholly different interpretations of these difficult subsections.
The scandal is that, rather than bothering to explain that carefully, the Government are trying to railroad the Committee. They are not trying to have their will accepted by argument.
Mr. Kenneth Hind (Lancashire, West) rose --
Sir Nicholas Bonsor : What is needed here is clarity. It is clear from the disagreement within the Committee among hon. Members with legal experience, that there is no such clarity in the clause at present. I agree with the hon. Member for Paisley, South (Mr. Buchan) about works of fiction. Many of them are partly based on fact, which the author must have obtained in the course of work as a secret agent. The mixture of fact and fiction is very much
Column 353to the benefit of the works of such authors and it makes reading their books so much more exciting than reading works of pure fiction, in which there is not a word of accuracy.
Is my hon. Friend the Minister telling the House categorically that such works will still be permitted if the Bill is passed in its present form? On my reading, that would not be the case. People such as John Le Carre will be liable to prosecution, although there will be some discretion, and it is possible that they will not be prosecuted. [ Hon. Members-- : "That will make it worse."] The clause will not make it worse, because I am sure that it is not the Government's intention to put authors of the highest calibre into a position where they would risk their own safety and security by going to prison.
"The reference in subsection (1) above to disclosing information relating to security or intelligence includes",
there should be, to make it clear, a figure (i) preceding "a reference to making any statement which purports to be a disclosure of such information or",
and a figure (ii) preceding
"is intended to be taken by those to whom it is addressed as being such a disclosure.".
In those circumstances, does my hon. Friend agree that, if one takes the second category, any jury would have to be satisfied--in, for example, the case of John Le Carre --that the author intended his work to be taken by those to whom it was addressed as such a disclosure? That would clearly not be satisfactory for a conviction.
Sir Nicholas Bonsor : With the greatest respect to my hon. Friend, who is learned in law, he has added to the confusion. If there were such a subsection (2) as he proposes--which there is not--it would help to distinguish between the one and the other alternatives. That would at least be a move towards it. However, I do not agree that the fact that the disclosure had to be
"intended to be taken by those to whom it is addressed as being such a disclosure"
would necessarily form a defence, because it would be possible for a jury to read John Le Carre and to decide that he meant "M" to be taken to be the genuine nickname given to the chief of MI5. If a jury came to that conclusion, which would probably be correct, under the Bill, John Le Carre would be guilty and would have no defence. If my hon. Friend can answer that point, then it may be that I am mistaken, but that seems to be what the Bill says at present.
Mr. Gorst : Would my hon. Friend, with his legal background, care to give an opinion on whether, if the intention mentioned here is to reveal information but to do so in a fictionalised form, and supposing that such information was one third correct, two thirds correct or 90 per cent. correct, he would expect a prosecution to take place because the intention was there and the information, or at least the idea, was communicated? Or would my hon. Friend expect that the information would have to be 100 per cent. true? In that case, the law would be nonsense as a fictional setting can never be 100 per cent. accurate. From what my hon. Friend the Minister says, such works would be caught by the Bill.
Column 354intended to be taken as true or purports to be true, the author will be caught under subsection (2). If that is so, the subsection must be wrong.
Mr. John Patten : It may be for the convenience of the Committee if I reply to my hon. Friends the Members for Upminster (Sir N. Bonsor), and Hendon, North (Mr. Gorst), to the latter of whom I failed to give a full answer on a matter that he raised earlier. I welcome the contribution of my hon. Friend the Member for Upminster, with his legal background. I must tell my right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour) that the word is "or" not "and". The correct questions to be asked first are whether the author makes a statement that purports to make a disclosure or whether the author intends it to be taken as such. Genuine fictional matters cannot be caught by the Bill.
To answer the question raised by my hon. Friend the member for Torbay (Mr. Allason), a publisher writing a blurb would not be caught by that offence. A statement purports to be a disclosure of information relating to the work of the services if it says it is. If it does that, it is not necessary to consider the author's intention. That is right. If it does not, the prosecution must prove the intention.
Mr. Allason rose --
Mr. Patten : I can assure my hon. Friend the Member for Hendon, North, to whom I omitted to reply properly earlier, that nothing written, whether it is fiction, allegory, satire or poetry, which is not intended to be taken by those to whom it is addressed as a disclosure about the work of the services, could be subject to the offence in subsection (2).
Mr. Allason rose --
Mr. Corbett : That is as clear as mud. It is no good the Home Secretary saying that such an explanation is crystal clear. We are dealing not with Home Office press releases, but with the words in the Bill.
Mr. Maclennan : On a point of order, Mr. Walker. I am conscious of the time, but bearing in mind the unsatisfactory nature of the Minister's answers and the evidence that many hon. Members have received from Justice, the British branch of the International Commission of Jurists, which does not support what the Minister has said, is it possible to make representations that the matter can be considered on Report? Clearly, the Minister's reply is misleading and we simply cannot accept it.
Mr. Allason rose --
Mr. Corbett : The Minister appears to be saying that all parts of the Committee are confused about this, apart from him. That cannot be so. It is not possible. The Minister has confirmed--this is obvious to a blind man--that the word we are arguing about is "or", but he then insisted that it is treated as if it were "and". The Minister
Column 355completely avoided the point. He referred several times to an author seeking to use fiction as a cloak to reveal something that is true, but how in God's name can the Minister tell the Committee-- It being Six o'clock, The Chairman-- proceeded, pursuant to the order [13 February] and the Resolution this day, to put forthwith the Question already proposed from the Chair.
Question put, That the amendment be made :--
The Committee divided : Ayes 191, Noes 296.
Division No. 95] [6 pm
Abbott, Ms Diane
Ashdown, Rt Hon Paddy
Ashley, Rt Hon Jack
Banks, Tony (Newham NW)
Barnes, Harry (Derbyshire NE)
Beith, A. J.
Benn, Rt Hon Tony
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)
Clark, Dr David (S Shields)
Clarke, Tom (Monklands W)
Clwyd, Mrs Ann
Cook, Robin (Livingston)
Cunningham, Dr John
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)
Hattersley, Rt Hon Roy
Healey, Rt Hon Denis
Heffer, Eric S.
Hogg, N. (C'nauld & Kilsyth)
Howell, Rt Hon D. (S'heath)
Hughes, John (Coventry NE)
Hughes, Sean (Knowsley S)
Jones, Martyn (Clwyd S W)
Kaufman, Rt Hon Gerald
Kinnock, Rt Hon Neil