House of Commons Hansard Debates for 16 Feb 1989

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which he quoted. He is perfectly correct to say that the other so-called absolute offence, which has to do with warrants legally issued, comes under clause 4 and is therefore not caught by clause 5(3). But the first one, revelations by members or former members of the security or intelligence services, is covered in the cases we are talking about.

Mr. Dalyell : I thank the Home Secretary for his courtesy. On the question of Wright, which I think a lot of this is about, my opinion--I say nothing that I did not say on behalf of the national executive when I was asked at the Bournemouth conference--is that Wright was a fantasist. He was plain wrong on a whole list of things, for instance about Alistair Watson. I believed the former Prime Minister, the right hon. Member for Old Bexley and Sidcup (Mr. Heath), when he said that it was quite untrue that Victor Rothschild introduced Wright to him when he was Prime Minister. That appears in the book, and there are all sorts of other inaccuracies. Everything that one has first-hand knowledge of seems to have been rather wide of the mark.

My question is this : in these circumstances why did the Government not shrug their collective shoulders, smile gently and let it sail by? What was the purpose of drawing such attention to this? One has one's suspicions, but they may not be for this debate, that it was to make a political point, which was very different from the ostensible reason.

I shall be supporting, I suppose--with all the reservations I have mentioned, because we take the Home Secretary's point very seriously--the spirit of the amendment tabled by the right hon. Member for Chesham and Amersham (Sir I. Gilmour), because of the sort of case that occurred in the Zircon affair. It may be within the recollection of the House that Zircon got great publicity, although when one looked at the film it was perhaps all a bit tame. The serious point for the Committee is that in a magazine called Interspace there were far more useful technical details of the elevation of Skynet IV than appeared either in the film that Duncan Campbell made or in any sections of the press. In that technical magazine, edited by Roger Stanyard, there was information that was far more useful ; and the February 1985 Newsletter, like every other Interspace publication, was on the mailing list of Intersputnik, the technical headquarters in Moscow. It really seems a bit absurd to make such a fuss about Zircon when the technical details were on the Soviet mailing list.

Mr. Corbett : Does my hon. Friend share my memory of the Zircon affair, that the Government's major objection was that the name of that project had become public and this would send yet another signal to the United States that the Government were unable to keep secrets?

Mr. Dalyell : I think that it was partly about the Americans and partly about another film in the series, which was politically embarrassing, called "Cabinet". In a sense it just proves that what is politically embarrassing is far more serious than national security.

I sit down with the reflection of Sir Frank Cooper, the former permanent secretary to the Ministry of Defence, who said that all this information was well known to every schoolchild in Milton Keynes.

In these circumstances I think we ought to take on board the general principles.

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Mr. Whitney : I am grateful to the hon. Gentleman for giving way. During the Zircon affair, am I not right in my recollection that the Leader of the Opposition was invited to the Ministry of Defence on Privy Council terms and given a full briefing and came out acknowledging that a security breach had been committed?

Mr. Dalyell : I just leave it that I was not present at that meeting.

9 pm

Mr. Ivan Lawrence (Burton) : I do not know why so many Members from all corners of the House--the hon. Member for Linlithgow (Mr. Dalyell) is an exception--are treating this very important issue of national security in quite such a cavalier fashion. I am not sure that it will do much for the regard with which this place is held in the country when people hear these debates.

I object to the amendments on two grounds. First, they might do harm to the future security of the state, and secondly, they would make it more difficult for an innocent person accused of an official secrets offence to be acquitted. I do not understand why Opposition Members think that either of those results is worth arguing for. I also do not understand why the fact that a damaging disclosure has been made somewhere before should be a complete defence to a second publication, if that second publication is itself harmful. Of course, I have heard both Conservative and Labour Members say that once a secret is out it is no longer a secret, ha ha. But we are not playing with words ; we are talking about harm to the national interest. I do not understand why my hon. Friends are arguing that if some damaging revelation reaches two people it might just as well reach 2 million people. There may be many circumstances where some things are damaging and they become more damaging the more people know about them.

I have heard some of my hon. Friends asking other hon. Members for examples. I can give some examples. If the news that some gold bullion is walled up in the Hammersmith flyover appears in the sort of publication that virtually nobody reads and then wide coverage is given in a national newspaper, so that all the criminals in London start hacking away at Hammersmith flyover to get the bullion out, surely the fact that more people know about that official secret--as it may be under clause 4, which covers crime--is more harmful? Suppose that a nuclear aeroplane crashed somewhere in the Channel and somebody somewhere says "Well, I think it is just four miles off Calais and five miles down from a rock," and that is published in a publication. Perhaps it is just speculation, but then somebody else decides to publish it because it is a fascinating secret that would generate a lot of newspaper sales. An enormous amount of harm might be done to something, which it was vital should not be published in the national interest.

Perhaps somebody will give the name of a villain who is kept in custody at Winson Green prison. Perhaps at some time it would be easier to spring him from there than from some other prison. The more people who know that fact, the more likely it is that serious criminal offences will be committed.

One could go on. The point is that the more people who know something that is damaging and harmful, the more harm may be done. We are talking nonsense if we say that,

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just because a fact has got out in one place, it can never cause more harm, however many times it is repeated to other people. That just goes against common sense.

Mr. Corbett : I must defend the integrity of the staff and governor of Winson Green prison, although that is by the by. Is the hon. and learned Gentleman really saying that those responsible for the management and conduct of our national press are all as irresponsible as he is making them out to be?

Mr. Lawrence : Sometimes--and that "sometimes" might do a lot of harm to the security of the nation. All I am saying is that it is wholly reasonable for prior publication to be an argument for not convicting someone where no harm is done by a second or subsequent publication, but it is wholly unreasonable to say that harm will never ever be done by a further publication. Those who have been advancing that argument are--I hope they will forgive me for being impertinent--talking nonsense.

What of the man who wanted to sell his official secrets to a publisher? It would make a mockery of the Bill if such a person could get round it by going to the United States, Australia, the Solomon Islands--I hope that no one will say that that is a terrible defamation of the Solomon Islands--or anywhere in the world and publishing, if, as a result of that publication, he could argue that, because the secret had been published elsewhere, that was a defence. He would be able not only to drive a coach and horses through the legislation, but completely to ignore it. I cannot believe that hon. Members want no Official Secrets Act. I simply do not understand why they seem to be agitating for the amendment.

Mr. Richard Shepherd : If an individual, whether a Crown servant or otherwise, publishes abroad in contravention of his duties under the Act, he commits an offence. No defence of prior publication protects him against that. If he comes back to Britain and is therefore in the jurisdiction, he will be prosecuted, and rightly so.

Mr. Lawrence : But we may not be able to prosecute him for an offence that he has committed abroad, if he stays outside the jurisdiction and there is no way of bringing him back to Britain for trial. That is precisely what happened with Peter Wright. Although he might have committed a criminal offence if what he had done had been committed in Britain, he could not be prosecuted for that criminal offence because he was outside the jurisdiction and there was no way to get him back into Britain to be prosecuted.

I have the greatest respect for my hon. Friend and for the courage and tenacity with which he has proceeded, but if he thinks that the point that he has just made is a good one, some may wonder whether all the points he has been making by way of intervention have been as good as he thinks they are.

Sir Nicholas Bonsor (Upminster) : I agree with almost everything that my hon. and learned Friend has said, but I hope that he will do justice to what my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) has said. He appears to be saying that if the person who had committed an offence by publishing abroad came back to Britain he could be prosecuted, but not otherwise. Surely the same is true if he remained abroad and published here, so I do not think that that is a particularly good argument either.

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Mr. Lawrence : The suggestion in the amendment is that there should be a defence if there is prior publication in the United Kingdom or elsewhere. If the prior publication had been in another country where there was no extradition, then, even though that prior publication was a criminal offence, the claim that prior publication is no protection when a criminal offence has been committed simply would not apply. A man who had released that publication in breach of our Official Secrets Act could not, in fact, be convicted if he was in a country from which there was no extradition. Therefore, no criminal offence would have been committed. As a result, the prior publication defence would be perfectly usable if we gave one.

I am saying that a coach and horses would be driven through the Bill, or it could be completely sidestepped, by somebody going abroad, committing a criminal offence by publishing something that is harmful to the state and then somebody here saying that there was prior publication. If the second publication causes no harm because all the world knows what was published in some other country, there will be no prosecution.

That brings me to the second heading. We talked about the same kind of thing when we dealt with the public interest defence. I do not understand why those who want to protect the honest whistleblower want to make it more difficult for him to be acquitted. Perhaps they do not follow the legal process. If the burden is on the prosecution to prove that harm has been caused and it is obvious that there has been no harm because there has been some prior publication, no prosecution may be initiated.

Let us suppose that the Attorney-General or the Director of Public Prosecutions, or whoever makes these decisions, decides that he wants to prosecute because he believes that there is a chance that somebody will be convicted--which is not a good way of initiating prosecutions. If the prosecution is unable to discharge its burden of proving that harm is being caused because of the release of that information, the case will be stopped by the judge. Whether there is no prosecution in the first place or whether the case is stopped by the judge, those things will occur before the onus moves to the defendant to initiate a defence. By that time, he has been through the expensive process of having lawyers spending more time in court and he is running the risk that his defence might go wrong and a jury might disbelieve him. I was howled down this afternoon because I dared to defend the independent Bar. However, in this case right hon. and hon. Members want to give more money to lawyers, want more prosecutions to be initiated, want longer trials and want to put more innocent people at risk. I do not understand that.

We have never had a defence of prior publication, because of the harm that it might do to the security of the state. It is not that it will certainly do so on tens of thousands of occasions, but that it might do so on some occasions. It is a sensible preventive device not to allow any more chance of harm to the national interest than is necessary.

I have heard no good reason why we should start now with the defence of prior publication, especially if it might mean more innocent people being placed at risk.

Mr. Heath : I wish to make three points. First, I say to my hon. and learned Friend the Member for Burton (Mr. Lawrence) that the reason why there has been considerable hilarity over some of the speeches this evening is that the

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examples which have been cited of a possible offence have been ridiculous. My hon. and learned Friend, in his opening remarks, gave no examples which one could in any way relate to the serious matter of national security. That is why we were amused.

Secondly, a few years ago the right hon. Member for Leeds, East (Mr. Healey) intervened in a debate--he spoke as a former Secretary of State for Defence and Chancellor of the Exchequer--to tell the House that the Chevaline question was decided by the 1970-74 Government. I have never disputed that. That makes the discussion tonight all the more irrelevant.

Mr. Whitney rose--

Mr. Heath : Of course I shall give way. I know that my hon. Friend has a bee in his bonnet.

Mr. Whitney : I recognise that it was my right hon. Friend and his Government who took the first decision, and he very much deserves to be congratulated on it. Had the example that I suggested transpired and if, in the first 18 months of a Labour Government, they had faced the attack which would have been launched and they had cancelled Chevaline at that stage, does not my right hon. Friend feel that the national interest would have been harmed?

Mr. Heath : No. I do not accept either the proposition put forward by my hon. Friend or the one put forward by myself.

What happened was that Lord Wilson, as he now is, in 1964 fought the election on the abolition of nuclear weapons in this country, and was kept in power until 1970 by maintaining them. As he was Prime Minister at the time that my hon. Friend mentioned, he would have done exactly the same if anybody had put forward the sort of propositions which my hon. Friend has just mentioned. I have none of the anxieties of my hon. Friend, and I am sorry if they keep him awake at night.

The third question was the one raised by my hon. and learned Friend the Member for Burton and one or two hon. Members previously. Why do we say that this amendment is desirable? I shall explain it as briefly as I can.

9.15 pm

My right hon. Friend the Home Secretary has gone to considerable lengths to show us how difficult it would be for the prosecution ever to bring a successful case in this matter. He has not been able to give any examples in which such a case could be brought, and he is an imaginative man. He writes excellent novels, but he cannot produce any convincing novel tonight. I accept that he has gone to great lengths to show that the hurdles which any prosecution would have to jump, to have any chance of success, are very high.

I accept that, so why am I worried about it? If the Bill remains as it is, the use of the threat of prosecution against the media in every form is not only undesirable ; it is disastrous. The Government have only themselves to blame for these thoughts being in people's minds after the lengths to which they were prepared to go over "Spycatcher", and after the events surrounding the BBC incident in Glasgow.

We have heard examples of the way in which news and information have been suppressed and we are forced to recognise that a Minister, the Attorney- General, the Home

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Secretary or someone acting in the name of the Prime Minister may go to an editor, or to the chairman of the BBC or ITN, and say, "Look, this is in the Bill. We've heard that you've got hold of something which was published in a small column in a technical journal in Singapore, and you are now proposing to publish it. If you do, the prosecution will wade in. Think of what it's going to cost you to try to fight this off." That is the real danger, and it should not be allowed to exist in a parliamentary democracy.

We are now the most secretive country in the world, and that is not healthy. We have heard far too many examples of that technique being used against the media. It may well now be used against Members of Parliament and others who have information because they travel widely and read journals.

When I am asked why I believe that the amendment should be accepted and why, even though there is a slight risk of it happening, I am prepared to take that risk, the answer is that I believe that the greater danger comes from the use of the threat against the media and those who have the responsibility to keep the public informed and against the right that the British public has to be informed. That simply is the justification for dealing with the matter through the amendment.

Mr. Lawrence : Is my right hon. Friend aware that the ladies of the Burton Conservative Association hang upon his every word in this place? They were greatly disturbed when he quoted what I said in a debate on this Bill. He said :

"No, let us get it away and let us get to bed. The only thing that concerns him"--

that is, me-- "is how early he can get to bed."--[ Official Report, 13 February 1989 ; Vol. 147, C. 86.]

I hope that my right hon. Friend will be good enough to retract that quite scurrilous allegation or, more interestingly, give examples--or is he saying that what he said was in the public interest?

Mr. Heath : My hon. and learned Friend had better consult Hansard and he will see how he ended his address. I am sorry that the ladies in his constituency are worried about him. I should have thought that, using such phraseology, some of them might have been rather flattered. Perhaps he can explain why the gentlemen of Burton are not in the least worried about that.

Mr. Foot : It is a great delight to follow the right hon. Member for Old Bexley and Sidcup (Mr. Heath), who is in such excellent form, and getting his troops off to bed as he used to when he was Chief Whip. He is doing so a little earlier tonight. It is dangerous for any Conservative Members to interrupt him, because they will be sent off without any chance of returning with a sufficient retort for quite a long time. They should be more cautious about the way they interrupt the right hon. Gentleman.

In one sense I differ from the right hon. Gentleman : I have more sympathy for the Home Secretary than he displayed. I shall return later to the more general points that he made.

I agree with my hon. Friend the Member for Linlithgow (Mr. Dalyell) that it is absurd for any hon. Member to say that the case that the Home Secretary made to us tonight was not serious. Of course it was. He argued it seriously,

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and although he could not give any specific examples when asked to do so, he described the modern circumstances in which such republication could be severely damaging.

It is no good any hon. Member contributing to this debate without admitting that the Home Secretary presented a serious argument to the House and the country. In some debates it is much more important to go for the strong parts of an opponent's argument than the weak ones--there are usually plenty of those. When I hear some of the right hon. Gentleman's supporters, I am reconverted 100 per cent. to the case against him. If we can only isolate the Home Secretary and his case from that embroidered by some of his supporters, we should try to answer it.

Although unable to give actual illustrations, the right hon. Gentleman was able to show that dangers could exist--particularly in the growth of terrorist affairs throughout the world. Nobody would dispute that those dangers are increasing year by year--almost month by month. I understand that there are circumstances in which it could be said that republication could place in the hands of terrorists in some countries information that they might not have received from the original publication. That part of the right hon. Gentleman's argument at any rate should be accepted, perhaps not as conclusive, but as one part of the general argument with which we must deal. When we agree with the Home Secretary and admit that such cases exist and that he is trying to guard us and the rest of the country agains peril, surely, in fairness--and particularly in the light of the previous discussions--the right hon. Gentleman should try to understand the other side of the argument. He has not really attempted to do so.

I speak as a journalist who, for quite a number of years, was the editor of a newspaper. It is a difficult job ; people have to make up their minds on many matters in a short space of time. They have to make judgments, not necessarily in the same way as politicians, who may have a little longer. With newspapers going to press every day, journalists have to make up their minds quickly. I believe that the Home Secretary and the Government have a duty to consider the kind of problems that journalists face.

I am talking about only the most reputable newspapers. I do not care about the Sun and other such newspapers, which I do not regard as newspapers at all. Nobody needs to worry about them--although they are the newspapers that are fed through the corrupt machine to which the right hon. Member for Old Bexley and Sidcup sometimes refers. I do not wish to disregard what he has said on that subject. Of course he is perfectly right to describe the relationship between the Government and the press generally--which is of serious consequence to the country--as corrupt, particularly in the way that information about terrorism is fed to newspapers.

What happened in the Gibraltar case was outrageous. The Home Secretary told us to look at terrorist examples. Yet a few days after the shooting in Gibraltar, what was fed out to the press by the Bernard Ingham machine and taken up by papers such as The Sunday Times was lies, for which they had to pay thousands of pounds in damages to people who had been maligned. Some of those libel actions were fed out from No. 10 Downing street-- [Interruption.] --and it is no good for the Home Secretary to laugh.

We want to clean up these matters. It makes it more difficult for the House to deal with this question, with the terrorist question and with its dangers in the proper way while we have that corrupt relationship between No. 10

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Downing street and a great section of the press. The Government have come near to proving the case on that, because they have not had a word to say in answer to that charge. But in the light of the new terrorist dangers, in the light of the way in which those matters are now dealt with by No. 10 Downing street and elsewhere, and especially in the light of the way in which the best newspapers in the country--I leave out all the Murdoch lot--had to deal with the problem all through the "Spycatcher" affair, it is not satisfactory that the Home Secretary should take no account of the problems that they had to face.

Mr. Hurd rose--

Mr. Foot : I shall give way in a moment.

The Independent, The Guardian and The Observer, three reputable newspapers, had to choose whether to risk prosecution. Newspapers do not like to be prosecuted because they are considered to be guilty of injuring the defence of the nation. All those newspapers had to take the decision whether to reprint matters that were widely published in other parts of the world. They were told that they would be committing an offence if they did so and would have to spend tens of thousands of pounds if they went ahead.

Mr. Hurd : I am grateful for the fair-minded comment at the beginning of the right hon. Gentleman's speech. I wonder whether we can strike a bargain. Can we agree that we do not have to choose between saying that prior publication can never be a defence and saying that it must always be an absolute defence? Can we meet in the middle and leave it to the jury?

Mr. Foot : I am grateful for the Home Secretary's intervention. I was going to come to my bargain, although I do not have the permission of the right hon. Member for Chesham and Amersham (Sir I. Gilmour) who moved amendment No. 37, so I would have made it my own proposition. The Home Secretary has come to a proposed bargain before, but this is not a satisfactory bargain. The House must decide such matters. It is no good to say, "Leave it to the jury." What will be put to the jury? We know what judges have said. We do not always have to listen to them, but the judges said at the end of the "Spycatcher" affair, "We had better have some greater clarity about the law. The only people who can do that are the House of Commons and Parliament." That is what the judges should say when they find themselves in a hopeless mess and tangle, as they were at the end of the "Spycatcher" affair, and that is what they did say.

It is no good for the Home Secretary to say that we do not need to change the law, but should leave it to the jury to sort out afterwards. That is not satisfactory and does not meet the criticisms about prior publication that were made by the judges. At the end of the "Spycatcher" affair, the implication of most of the judgment was that there should be some changes in the law to prevent the British Government from going ahead with an appeal when they had a case that could not survive. The Government failed hopelessly. We must sort the matter out. It is no good to say that we should leave it to the jury. We must have a change in the law which makes the matter clearer. If the Home Secretary really wants a bargain, he should consider amendment No. 37, which the right hon. Member

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for Chesham and Amersham moved so excellently. Nobody who has listened to the debate can deny that there is a powerful case for the amendment.

9.30 pm

I do not think that the Home Secretary was putting up a fake case. I think that he was speaking from the point of view of what he considered to be necessity as a person who is partly in charge of dealing with the appalling problems of terrorism that we face in modern society. If the Government had the good will to do so, they could modify the amendment to satisfy both objectives and to give proper guidance to the jury. We could add the word "substantially" so that the provision read, "information which had substantially become available". That would guard against the danger of the abstruse single matter which it was claimed would give the defence for the larger newspapers back here.

I am sure that the Government could come up with an amendment which would be satisfactory for their purpose but help the decent editors in this country--those who are trying to serve the public by providing them with news which, in the "Spycatcher" case, was available all over the world. What happened in that case was an absurdity of the first order, and I do not imagine that the Home Secretary would dream of defending it. The principal decent newspapers--I am excluding all the Murdoch lot--could not report, for the benefit of the people of this country, what was being read about all over the world. That is not tolerable, and it is not tolerable for the Home Secretary to come along and say, "I am very sorry. I cannot do anything about that. Compared with the other problems with which I have to deal, it is not very important." It is not good enough, after all this muddle, to say yet again that we must leave the jury to sort it out.

I plead with the Home Secretary yet again--as hon. Members have on other clauses of the Bill--to take the provision away and see whether he cannot find an alternative wording to ensure that, even if prepublication were not a defence in 100 per cent. of cases, it would be a defence in most cases. That would relieve decent editors, who have faced problems over the past year or so, of their difficulty. That would be good not only for the editors and their peace of mind, but for the health of free debate in this democracy of ours. If the Home Secretary believes in that free democracy-- and I think he does--I hope that he will be prepared to reconsider the amendment, which is one of the most important that has been proposed in Committee.

Mr. Dykes : I do not know whether my right hon. Friend the Home Secretary will respond to that invitation. There are those among us who have sympathy with the Home Secretary and appreciate the underlying importance of the clause. We have a natural preoccupation with the genuine security interests of the nation, the British public and our armed forces. I freely acknowledge that I am tempted in that direction. I was disappointed, therefore, when the Home Secretary intervened to give his reaction. With respect, I do not think that he dealt with the points of anxiety raised by hon. Members, especially Conservative Members who support my right hon. Friend's amendment. I am sure that my hon. Friend the Member for Wycombe (Mr. Whitney) will not mind my saying this, as he knows that I have great respect for him and for his experience in these matters, but I think that his examples

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added enormously to the Committee's confusion and that they were ill chosen. I was struck by the enigma that arises from his allusion to the mention in a German magazine of the MI5 chief. I believe that 70,000 people fly across the Atlantic every day. That sounds like an enormous number--something like 140 planes, each with 500 people on board. I imagine that about 5,000 people, mostly business people, come back from Germany to Britain each day. I could postulate that perhaps half of them, one way or another--either by speaking German or by having it drawn to their attention by somebody who spoke English, as a lot of people in Germany do--could come by this information. Half would be 2,500 people, and those people would then come back with the name of the head of MI5 and pass it on to friends at dinner parties. What would my right hon. Friend say in those circumstances? Would he say that too few people in Britain knew about this secret once they got back to Heathrow, or too many?

Mr. Whitney : My hon. Friend has given a figure of 2,500. I do not know the total readership of the Evening Standard --perhaps 1 million or 2 million--but what we are talking about is a risk growth of 2,500 to perhaps 1 or 2 million, and out of that number there might well be some crazy person who would say "If that man is the head of MI5 I will go and assassinate him." That is the danger. That is the public harm that is created.

Mr. Dykes : One always comes back to the conclusion that these things are being postulated--I refer to this clause without amendment--for the convenience of any given Administration, or its security branch, or the service chiefs, to prevent embarrassing things from being revealed, rather than for genuine, intrinsic national security. That is the conclusion one keeps coming to.

Mr. Hurd : That exchange between my two hon. Friends is interesting, because it is precisely the kind of exchange which, under the Bill, might take place between the prosecution and the defence. Is my hon. Friend so unhappy about his chances of success with that argument that he believes that he must win automatically without the case being heard at all? Why could the matter not be left to a jury?

Mr. Dykes : We are not dealing with espionage and the true breaches of security that are dealt with in part 1 of the Official Secrets Act. This is the ultimate absurdity of the "Spycatcher" example. I suppose that one could say there is a complete range, from the tiny little technical journal. I hope that my right hon. Friend was not suggesting that Literaturnaya Gazyeta was in that category, because, as it is a wide circulation newspaper in the Soviet Union, its editor would be most offended. I will not mention by name the tiny technical journals of the kind that I have in mind, because I might offend some trade association or other, but a tiny technical journal might publish something, and a newspaper with a large circulation might be the next publication to carry it.

Then at the other end of this range of absurdities--and most of the real- world examples will, of course, be within the range, is "Spycatcher". That is what most induces hon. Members in all parts of the House to insist on this amendment. At least I hope they will, unless we can get a further explanation or reaction from the Home Secretary

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to the offer that has been made by the right hon. Member for Blaenau Gwent (Mr. Foot). However, I do not think that that will be forthcoming tonight.

Inevitably we come back to the conclusion that the Government--and this is an anxiety that journalists have expressed already--would rather threaten the press with something that would be embarrassing than provide for something that is a genuine aspect of national security. I do not think that the case for not amending this clause can be based on vague suppositions about the efficiency or inefficiency of foreign intelligence services. It is all far too conjectural.

Let me give another theoretical example--and I hope that no one will misunderstand me. Hon. Members in all parts of the House condemn the growth in world terrorism and, indeed, in state or quasi-state terrorism. I will not mention any real-world examples, because I do not want to offend hon. Members, but what if we were imbued with the idea of a just cause for terrorist acts? At the moment, I do not myself particularly see them, although one can sometimes go back to historical acts or mistakes in particular countries, producing a terrorist reaction. We condemn the act itself, even if not the underlying causes.

What if there were manifestly an overwhelming conviction that the cause was a just one and either a foreign Government or the British Government--in this case, we are considering only a British Government--decided that they had to suppress all information because it was embarrassing in the context of their own policies and had nothing to do with state security? I wonder also whether we are grappling with the notion of a high hurdle or with the notion of a low hurdle. Was "Spycatcher" a high hurdle for the Government because of the absurd result, or was it originally deemed to be a low hurdle, and is that why hundreds of thousands of pounds were expended--

Mr. Richard Shepherd : Millions.

Mr. Dykes : Yes, millions.

--and in the end we had a laughable result? Is that the reason for the endless farce so far as the true arguments about state security and the true protection of the public are concerned?

We have had absurd examples from the past of the security services rampaging round London making fools of themselves. I am sad to say that, by definition, those people are not always stable in character and behaviour ; they are often fanatical and strange. The nature of the activity attracts people like that. Covering up such activity in the past does not protect the present security of the country. The Americans and the French also have a reputation for secrecy, but it is now much less than ours. The obsession with secrecy has grown extraordinarily in recent years in this country. No theoretical examples were available to those defending the existing text of the Bill, nor could my right hon. Friend the Home Secretary produce a conjectural reason why the existing clause should be supported. I can understand why. I am not criticising him, because I can see the dilemma that he was in.

Because the public interest debate was turned down by the Government--a great opportunity lost--we have a tragic result. My right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour) might accept

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textual adjustments to the wording which he has felicitously presented to the Committee. Without the public interest defence, the amendment is even more necessary. I hope that that is the conclusion of the Committee.

Mr. Rooker : There has been a presumption throughout the debate that the first disclosure is a minor disclosure. There have been constant references to the small circulation of technical magazines. One can think of many examples. The first disclosure may not be minor but if there is not a prosecution, the disclosure may be repeated and there may then be an attempted prosecution. Does the person who publishes the story the second time know that all the harm that could have been done was done the first time? Because there was no prosecution the first time, even though there was a small circulation, the person might think that he could repeat the story.

We were told in the White Paper that by and large people should know whether they would be liable to prosecution. A publication with a big circulation is not necessarily wrong in repeating a story that first appeared in a small paper. Action might not have been taken the first time but might be taken the second time because someone decides that harm is done the second time. Some people may wonder why there was not a prosecution the first time. That point should be addressed by the Home Secretary.

If these proceedings were not being guillotined, and if we were conducting the sort of scrutiny which we would in Standing Committee, and which it is the duty of the Chair to see that we do, I would ask a question which arises from an intervention by the Home Secretary. In response to the Home Secretary, the hon. Member for Harrow, East (Mr. Dykes) said that the MI5 person would not be covered because he would be dealt with by clause 1. Why is clause 5(6) in the Bill? I do not know. I should like an explanation. If there is time for an explanation before the guillotine drops, we will be grateful, even though in asking the question I realise that I am out of order. 9.45 pm

Mr. Aitken : The Committee has had a very good and reflective debate. Although I was not entirely convinced, the Home Secretary's speech deployed a case which needs a serious answer. Ultimately, the clause involves a very fine balance which must have been recognised by the Government, as in 1979, under Lord Whitelaw, their Official Secrets Bill contained a prior publication defence. Although Lord Whitelaw is no great softy when it comes to freedom of the press and libertarian instincts, he put in the prior publication defence and my right hon. Friend the Home Secretary took it out. That demonstrates the fine distinction as to what is the right course.

It comes down to one question : in what sort of society do we want to live and have our freedom? My right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath) hit the nail on the head when he said that he felt that Britain today is the most secretive country in the free world. It has become so secret as a result of a large number of new pressures of which "Spycatcher" was perhaps the most spectacular example.

Of course my right hon. Friend the Home Secretary is right to deploy the thesis that there could be some risk from second publication. I should have been more convinced had he been able to give a single example from his imagination or his knowledge ; nevertheless, the

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Committee should accept that possibility. However, one has to balance that risk against not whether we are prepared to take a risk, but whether we are prepared to have a law that will be an ass and ultimately will make the Government look silly. That is the area of choice.

Two different mentalities are involved. The Home Secretary, who sounded so reasonable, so sensible and so civilised, represents the Whitehall mentality. My right hon. Friend sprang from Whitehall and he still has more than a touch of the mandarin's mind in his politician's garments. That mandarin's mind really wants to keep the lid on as tight as possible. One can give numerous examples about how that mandarin's mind works. I remember vividly how Whitehall clamped D notices on British newspapers when George Blake was coming to trial. George Blake was a famous double agent. There was no question of anything being revealed by the British press which the Soviets did not already know. The Government were trying to suppress the truth from the people of Britain, not keep the lid on something that was a genuine security matter in respect of the Soviet Union.

I remember one moment during my own trial at the Old Bailey. A deputy secretary at the Foreign Office had some difficulty in explaining how the report on which the whole case turned could possibly be secret when every single fact had already been published. Perhaps the most embarrassing fact was that a Foreign Office official had actually written the report. In a rather memorable moment of cross-examination, the defence counsel asked the Foreign Office official if, when he gave a briefing on the report, he had to pretend that he was the hall porter or to wear a mask, since the only problem was that his identity had been revealed. The Foreign Office official paused for a long time before saying, "Well, it was very embarrassing, and embarrassment and security are not really two different things." That is the Whitehall mentality when it comes to suppressing information.

Let us suppose that we were in the United States and our debates were being televised. How staggered and stunned the American public would be to see a great democracy such as Great Britain solemnly arguing about imposing major suppressing devices and shackling the press and saying that if a secret has already been published it should be an offence for a second publication to take place. It would be totally against the United States Constitution, the Freedom of Information Act and the whole tradition of investigative journalism where reporters are not mere messenger boys, the lickspittles of the lobby, or the Ingham hallelujah chorus but real detectives of democracy. The whole ethos of American society is an open society.

Mr. Whitney : Before my hon. Friend leaves the subject of origins-- he has referred to our right hon. Friend the Home Secretary and his Whitehall origins--does he agree that his own distinguished journalistic origins might have coloured his attitudes? As we look at this difficult issue, which, as my hon. Friend has said, is extremely finely balanced, his instincts stem from a journalistic approach, just as my right hon. Friend's instincts stem from the interests of the state. We accept that there is a difference, but there is nothing wrong with that. If there is an allegation of bias, there may also be motes in other people's eyes.

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