House of Commons Hansard Debates for 16 Feb 1989

Mr. Maclennan : Perhaps I can help the hon. Gentleman. We are considering two amendments. The first reference to "international relations" is in clause 6(1)(a)(i), which deals with

"security or intelligence, defence or international relations" and to which amendment No. 75 relates. The second appears in subsection (4). The hon. Gentleman is quite right to have raised those questions.

Mr. Buchan : That forces us back to the terrible drafting of the Bill. Let us look at the word "or", for example. Subsection (4) refers to "security or intelligence" and "defence", but subsection 1(a)(i)--it sounds like a football pool, does it not?--refers to "security or intelligence, defence or international relations", which has an entirely different significance. That, surely, means that "international relations" does not refer to intelligence, security or defence. We come back to the grammar of the Bill. Quite apart from its dangers, it has not even been drafted well. I will sit down if the Minister can give me an answer. Does "international relations" mean "intelligence, defence and security", or does it mean what we normally mean by it--relationships between countries?

Mr. Maclennan rose--

Mr. Buchan : If Conservative Members cannot solve their problems, we shall have to do it for them. It is their bloody Bill.

Mr. Maclennan : I hesitate to do the Minister's work for him--

Mr. Buchan : It looks as if the hon. Gentleman will have to.

Mr. Maclennan : May I draw the hon. Gentleman's attention to the definition in clause 3(5)? That describes international relations as including

"any matter relating to a State other than the United Kingdom which is capable of affecting the relations of the United Kingdom with another State".

That is an all-embracing definition.

Mr. Buchan : Absolutely. Is the Minister going to try to be helpful, or not? I pause for a reply.

Mr. John Patten : I thought that the hon. Gentleman was taking us through bits of the Bill that he had read and other bits that he had not. The hon. Member for Caithness and Sutherland (Mr. Maclennan) is quite right : international relations are described on the face of the Bill, in lines 1 to 6 of clause 3(5). Clause 6(4) refers to the damage tests that are attracted to the offence, and the offence is described in clause 6(2).

Mr. Buchan : But, with respect, it does not say that. Clause 6(4) says :

"For the purposes of this section"--

that is, the whole of clause 6--

" security or intelligence', defence' and international relations' have the same meaning as in section 1, 2 and 3 above".

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The Minister is now pushing us on to sections 1, 2 and 3, which refer to security, defence and international relations, which is defined as being

"between international organisations or between one or more States and one or more such organisations and includes any matter relating to a state".

In other words, the question of security or intelligence has nothing to do, in that case, with international relations. We are back to the simplistic definition after all.

Mr. Patten : The hon. Gentleman seems to have overlooked clause 6(1) (a) :

"any information, document or other article which--

(i) relates to security or intelligence, defence or international relations".

f divn list Mr. Buchan : On the contrary, I was making a specific point about clause 6(1)(a)(i) when I pointed out that the "or" could not by definition--if it meant anything at all--subsume international relations with security intelligence or defence. We now know that we are not dealing with security or defence--or at least I think that that is what the Minister is saying. We are dealing with it only as defined in clause 3(5) :

"the relations between States, between international organisations or between one or more States".

We are not, therefore, dealing with the matters with which the Official Secrets Bill purports to deal--that is, defence and security leaks. We are dealing with the investigation, commentary and publication of attitudes, relationships, manners and matters happening between states.

I gave an example--

Mr. Patten : Clause 6 applies, where :

"(a) any information, document or other article

(i) relates to security or intelligence, defence or international relations".

If the hon. Gentleman reads through clause 6, he will see that it all flows.

Mr. Buchan : For the purpose of the debate, we are proceeding on the assumption the Minister is making that "international relations" means the definition in clause 3(5). That is right. I am merely pointing out the difficulties we then have in clause 6(4). We are saying, therefore, that we are not dealing with the relationship of international relations, security aspects, defence and intelligence, but are giving the full meaning of the word to "or" and, therefore, isolating "international relations". [Hon. Members : -- "No."] I cannot conduct any more English lessons. We are dealing with international relations as such and

"the disclosure without lawful authority of the information, document or article by the person".

The problem that the Minister and the Committee face is that the purpose of decent, good journalism is precisely to expose secret negotiations where it can. If there is any problem that has bedevilled relations throughout the 20th century, it has been secret diplomacy. I gave one obvious example, which acted as the death knell for the future of the British empire. The Suez affair was a climacteric which could not have occurred if the people of this country had known in advance the deal that had been made between Britain, France and Israel. If any journalist had discovered that, far from being punished, he should have been made a national hero because he would have prevented us from committing one of our worst crimes and disasters. Such actions are prevented by clause 6. It is the function of the good journalist to ferret out secrecy in diplomacy. One has only to think of the

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apparatus of the Common Market. I see that the hon. Member for Southend, East (Mr. Taylor) is present ; he pricks up his ears as soon as someone mentions the Common Market. It is perfectly proper that secret agreements within the Common Market purporting to be on behalf of the people of this country are ferreted out and published. Clause 6 is a further attack on the freedom of the word in this country. It has moved into a wider area than the area we have been discussing until now and it does not even have the caveat of the more serious definition of harm, which we attempted to put in. We wanted to replace the word "damage" with "serious harm" or "serious damage". For that reason, I support amendment No. 75.

Mr. Richard Shepherd : In the spirit of inquiry, I should like to ask a hypothetical question to find out how the clause might apply. As my hon. Friend the Minister rightly said, the clause states : "This section applies where any information, document or other article which relates to security or intelligence, defence or international relations"

comes into a person's possession.

Mr. John Patten : So my hon. Friend agrees that the interpretation that I gave the hon. Member for Paisley, South (Mr. Buchan) was correct?

Mr. Shepherd : I do not propose to play games with the Minister at this late hour--and under sentence of the guillotine at that. Suppose that the Foreign Office is in communication with the Foreign Ministry in Madrid, and that it is its purpose to dispose of a peripheral problem--Gibraltar. In confidential talks that have not been the subject of discussion in the House, the Foreign Office makes it known to the Spanish Foreign Ministry that its objective is to accommodate Spanish interests in Gibraltar.

Through the indiscretion of a Spanish Foreign Ministry official, the information comes into the possession of the major newspaper of Spain. That newspaper wants to play down the embarrassment to Britain but nevertheless wants to send a signal to the Spanish people that, despite all the huffing and puffing of the British Foreign Office, the matter is settled : Britain is to dispose of its interests in Gibraltar and its support for the Gibraltese people, in whatever way is easiest. That is Britain's policy objective.

As I understand the clause, it would make it an offence to publish that information here, because it would trigger the damage described in clause 3(2), about which there is some concern in the Committee. I believe that yesterday my right hon. Friend the Home Secretary undertook to reconsider clause 3(3), which says that an offence has been committed by virtue of the fact that the information is confidential and the damage proven.

If the words "international relations" remain, the clause may inhibit the ability of the British public to make a real contribution, through the House, to the formulation of British foreign policy--something for which the House is responsible and for which it is held responsible by the electorate. The Bill as drafted could diminish seriously our ability freely to discuss information which, of its nature, becomes available from abroad.

Mr. Maclennan : Has the hon. Gentleman noticed the anomaly that the clause encapsulates? If the information that he describes were passed directly to the Pentagon,

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having been obtained as a result of the exercise by a United States citizen of his rights under the Freedom of Information Act and published in the United States, as opposed to Spain, it would not be a criminal offence under the Bill to repeat it in this country. In this case the nature of the crime would be dictated not by our domestic requirements but by the domestic law of Spain or the United States.

Mr. Shepherd : It is altogether a curious clause, and that is why it is worth exploring. I know that the United States has something called "sovereign Government immunity", which enables the United States Government to remove from the public record information that is sensitive to foreign Governments. I understand that, and I would not criticise it.

Let me push the Gibraltese scenario a little further. We know that the position that I have outlined is not the Government's declared position. We know, too, that Britain has a number of peripheral problems. Belize, the Falklands, Gibraltar and Hong Kong are the four well known ones. The declared aim of Britain was the declared aim of Britain, but somehow, at the end of the day, we seem to accommodate something different from that which Foreign Office Ministers have told the House of Commons.

It was not my intention to go all the way down that road. I wanted to say merely that if this provision is allowed to stand as it is, it will be very difficult for a British paper to publish information that has become available. I am not sure why that new offence should be created in the Bill. Therefore, I look forward to clarification from my hon. Friend. Why do the Government want blanket control over information whose publication is not at present an offence? 10.45 pm

Mr. Stuart Randall (Kingston upon Hull, West) : Clause 6 deals with the disclosure of information that has been entrusted in confidence to other states or international organisations. The amendment with which we are dealing concerns subsection (1), which provides that where any information relating to security, intelligence, defence or international relations, which has been given in confidence by the United Kingdom to another state, has come into a person's possession without the authority of that state, that person is guilty of an offence if he makes a damaging disclosure.

We are lacking a real Committee stage. The impression I have from other hon. Members is that they agree with me that we have been unable to grasp the dimension of the matters with which this clause deals. It seems to expand the scope of the Bill very considerably. We have had no notes on the clauses, and I cannot understand why the Government feel it necessary to include any information that embraces international relations. I imagine that few hon. Members can envisage the real nature of any information that is referred to here relating to international relations. I imagine that quite a lot of it is trivial stuff--specifications, drafts, and so on. Nevertheless, I am disturbed, and quite alarmed, that the Bill should make provision for this catch-all facility.

On many occasions concern has been expressed in the House of Commons about the old Act having this catch-all effect. We seem to be going down that path--certainly so far as all the information associated with international

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relations is concerned. I thought that we were supposed to be liberalising the 1911 Act. Instead, we seem to be going in the other direction.

I should like to understand the Government's motive behind clause 6(1)(a)(i), which refers to

"any information, document or other article which--relates to security or intelligence, defence or international relations". Let me put a few questions to the Minister so that I may understand why this provision has been included. First, what consideration is given to this question of the prevention of damaging disclosure by other Governments? Is it a two-way process? Do we have a deal within the EEC to ensure that there is coherence, if that is required? Secondly, have there been disclosures which have prompted the Government to introduce the provision on international relations? I do not want the detail ; I just want to know whether there is a serious problem. Are there difficulties with other countries that prevent us protecting our interests? I should like the Minister to answer that.

Mr. Gorst : I may help the hon. Gentleman who is thinking aloud about the Government's motives. The same may apply to other clauses which we have already discussed. I think the answer is that, like the nuclear deterrent, the provision will have failed if it has to be used. Exactly the same applies to all the new aspects that we have been discussing. If they lead to a prosecution, they will have failed. Unless the offences are monumentally obvious--by their very nature they will not be--the provisions will never have to be used. In parliamentary terms they are the equivalent of the nuclear deterrent. They are unlikely to be utilised.

Mr. Randall : I am grateful to the hon. Gentleman for his comments. I find that depressing. It suggests that the legislation that we are creating is largely irrelevant.

Mr. Buchan : The purpose is not to use them but to put an apparatus of repression over the whole area. The same deterrence argument is made in support of the bomb. The real point is to prevent expression. It is part of the suppressing of the freedom of the word.

Mr. Randall : I will put forward a hypothetical case which I thought up in the Library just now, having read through the Bill. If we consider all the information referred to, I can imagine such a case emerging. Let us see the implications in the context of the Bill.

Let us suppose that a motor manufacturer, in conjunction with the Government, has produced a performance specification for a motor car. Let us assume that the document is sent by Her Majesty's Government to Brussels and is incorporated into a draft directive which would have confidential status. I hope that the Minister will listen ; I should like him to comment on this because in a way it tests the comments of the hon. Member for Hendon, North (Mr. Gorst) and of my hon. Friend the Member for Paisley, South (Mr. Buchan).

Let us assume that a British chap in the Commission allows, perhaps wrongly, the trade association for the relevant part of the industry to have access to the information. So a disclosure takes place without authority. The person in the trade association in turn consults individual member companies to find out what they think about the performance specification. Would that be an illegal act and could there be a prosecution? If so, we are creating legislation which would be unfair to British manufacturers.

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If France and other countries do not have such legislation, will some manufacturers within the European Community have advantages over others? Will the legislation put British suppliers at a disadvantage? That is an example of the way in which classes of confidential information pass through the authorisation procedure. How does that process stand up to the legislation? If it does not, the consequences could be quite serious.

In earlier debates we heard that disclosure of international information can have two effects. First, it can damage confidence in our diplomatic service through the breach of confidentiality, and, secondly, the disclosure of confidential information can cause direct harm. Where do the Government stand? Were they encountering difficulties? We need to know whether direct disclosure is causing difficulties for the Government and for European Community countries. How often does it happen? In order to achieve some understanding of the matter--if we were in Standing Committee we would do so through amendments--it would be interesting to know the manifestation of such disclosure. Are press stories diplomatically embarrassing or are we concerned with the exploitation of contracts and commercial information?

Another matter about which I am uncertain, and, since we are in Committee, it should be clarified, is whether there are pressures from the EEC. Is the integration of the European Community a factor? If it is, is there a need for disclosure to be included in the Official Secrets Bill because there is growing confidentiality and more secrecy between the nations of the European Community? Like my hon. Friend the Member for Paisley, South (Mr. Buchan), I am worried about the tightening up of information and the prevention of journalistic leaks.

I shall not go into detail, but we heard about corruption in the EEC involving £6 billion a year. When such a fraud is taking place--which I understand involves agriculture, shipping, imports, exports and pharmaceuticals--the prevention of disclosures of information raises certain questions.

Mr. Greg Knight : Will the hon. Gentleman tell us how any fraud that involves farming is related

"to security or intelligence, defence or international relations"?

Mr. Randall : The hon. Gentleman is consulting the Bill, but I am referring to the amendment which relates to international relations. Finally, what are the shortcomings of the existing arrangements and why have the Government made changes in that way? I have tried to show the Minister that we need a far better understanding of the Bill, which we would have achieved by thrashing it out in Standing Committee. My impression from reading the Bill and gleaning what information I could--of course there is very little to read and few people to talk to on these matters--is that the Bill represents a step in a worrying direction and it appears that section 2 of the Official Secrets Act wil not die for a long time.

11 pm

Mr. Teddy Taylor (Southend, East) : I shall take only a short time to raise a serious issue. I fully appreciate the Minister's problem. Often, clauses in legislation on official secrets or, say, child care must be drawn so widely that we create an impossible situation to justify a certain position.

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I can appreciate how a wide proposal can often be misinterpreted as stating that a ridiculous thing can happen in a certain context. However, we are entitled to ask the Minister to state the Government's future intentions and policy in broad terms. There is only one matter on which I should like an assurance. Will the Minister assure me that, by and large, and subject to all kinds of matters, it is not the Government's intention to use this clause as a means of trying to suppress reports about frauds, launderings and illegalities? The definition of an international organisation in clause 3(5) is so wide that it can include anything. It covers "any matter relating to a State other than the United Kingdom or to an international organisation which is capable of affecting the relations of the United Kingdom with another State or with an international organisation."

That can cover anything--any report on any subject--the disclosure of which could result in damaging relations.

We all know that there are massive, costly frauds in the EEC. There have been all kinds of ridiculous reports. For example, the other day we heard about how an enormous amount of EEC money is being spent on financing the Mafia for delivering non-existent fruit juice to NATO headquarters in Palermo. That is damaging and embarrassing. Relations between Britain and the EEC could be embarrassed if a report from one Government Department to another in the United Kingdom were revealed. People in the EEC would be upset. We know that there is a massive fraud in exporting so-called food, and exporting offal and calling it pure beef.

It is not because of some journalists that we know that such things are happening. We have had confirmation from the Court of Auditors that there is a mass, widespread fraud, which is costing every taxpayer in Great Britain a great deal, and is causing great damage. We know that the Government are interested in the matter. The Prime Minister said that she will raise it at the next meeting of the European Council and find out what on earth we can do to stop agricultural fraud.

Mr. Greg Knight : Subsection (1)(a) is about communications in confidence. Our right hon. Friend the Prime Minister is not making such communications in confidence.

Mr. Taylor : I cannot understand what my hon. Friend is trying to get at. Of course my right hon. Friend makes public speeches. But Government Departments write papers for her. Details about further frauds involving the Mafia or the IRA--we know that they are both involved--are not the type of thing that the Prime Minister would make a public speech about. There might be a report from the Minister of Agriculture, Fisheries and Food or from the Secretary of State for Trade and Industry at No. 10. That would be a confidential matter. If revealed, it could damage relations between the United Kingdom and the EEC. My hon. Friend must surely accept that that can happen. The Government are interested in the matter, and we hope that something can be done about frauds, irregularities and wrongdoings. However, there are other kinds of wrongdoings. Hon. Members may remember that, after giving lots of money at Fontainebleau, the Prime Minister came back with a wonderful piece of paper

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that said that we would have strict budgetary control. We know now what happened. We did not know what happened the other time. By using accountancy frauds, the Commission was able to put the matter out the window. There were ridiculous accountancy devices, such as a 10-month year in 1987.

I can appreciate that the Government do not want to cause trouble between Britain and the EEC, between Britain and France, or between Britain and Germany by having confidential matters revealed. I can appreciate their point of view, and I am sure that they can appreciate ours and that of the people who want to find out about those matters.

On the other hand, if things are being done which cost people money because laws are being broken--because frauds are being committed and money is being siphoned off to help the IRA and the Mafia--we would surely never use this type of clause to prosecute people because they have revealed an illegality.

We are not gunning for the Minister in any way. We appreciate the difficulty of drafting a suitable clause ; if it is too wide, people will say that the Government could do ridiculous things. I hope that we can be assured that the Government have no intention of using the clause to prosecute somebody for disclosing the truth about a fraud, an illegality or a wrongdoing. If my hon. Friend could say yes to that, it would give a clear idea of what the Government have in mind.

Mr. John Patten : I begin by saying yes to my hon. Friend the Member for Southend, East (Mr. Taylor)--yes in a policy sense, because no Government supports fraud. I can answer yes to his question about the clause--he asked whether we would use clause 6--because it deals only with our official information which goes out of this country, provided in confidence, about international relations to another state or to an international organisation.

My hon. Friend will no doubt know, because he took part in the debates on the provision, that clause 3 deals with confidential information provided to this country. I hope that my hon. Friend is content with that reassurance.

Mr. Teddy Taylor : Yes, I am. But information can often be transmitted by the Government to an international organisation about frauds and illegalities taking place elsewhere. In other words, this is United Kingdom information provided by United Kingdom Departments about activities elsewhere. I am grateful for what the Minister said. His answer was clear and precise, and I hope he will accept that, while this is United Kingdom information going out, it could be concerned with frauds happening elsewhere.

Mr. Maclennan : Does the Minister--

The First Deputy Chairman of Ways and Means (Sir Paul Dean) : Order. We should have one intervention at a time. Mr. Patten.

Mr. Patten : I am willing to give way to the hon. Gentleman, Sir Paul.

Mr. Maclennan : Does the Minister feel able to give the assurance that he has given to his hon. Friend the Member for Southend, East (Mr. Taylor)? We had a long debate earlier today in which the Attorney-General made it clear that issues of prosecution--about fraud or anything else

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--were determined not by Government policy but by him in a judicial capacity. He was at great pains to make that point, and I think that the Minister was present when he made it.

Mr. Patten : I was answering two specific questions asked by my hon. Friend the Member for Southend, East. One was a policy question. He asked whether it was the intention of Her Majesty's Government to undertake cover -ups about frauds, and the answer is no. I expressed the answer as yes because that was how he asked me to express it. His second question--the answer to which he no doubt knew, but he was probing the Treasury Bench-- was about clause 6. I said that it deals only with our official information relating to international relations which we provide in confidence to another state or to an international organisation.

Matters for prosecution under clause 3--under which some prosecutions might be brought--would be for the Attorney-General using his powers under clause 9, and those were the points to which my right hon. and learned Friend referred when he addressed the Committee this afternoon.

I will explain why the Government think this provision is important and then I will answer each of the detailed questions asked by my right hon. Friend the Member for Worthing (Mr. Higgins) ; the important example about the Spanish newspaper, the El Pais, given by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) ; and the hypothetical example posed by the hon. Member for Kingston upon Hull, West (Mr. Randall).

It is clear that the hon. Member for Caithness and Sutherland (Mr. Maclennan) agrees that it is right to protect information relating to security, intelligence or defence that this country provides in confidence.

Mr. Maclennan indicated dissent.

Mr. Patten : The hon. Gentleman does not agree with that proposition, and I am deeply disappointed. We should be prepared to protect information relating to defence when its disclosure would jeopardise our interests abroad. Equally, information concerning matters of the greatest sensitivity about relations between states whose disclosure would have the same effect should also be protected.

Let me give the Committee examples illustrating the validity of that argument. Even if the hon. Member for Caithness and Sutherland does not want such information to be protected--I repeat that I was disappointed to see him indicate dissent from a sedentary position--I am sure he accepts that international co-operation is one of the best ways of pursuing measures to curb and to combat international terrorism. Surely there cannot be anything between the hon. Gentleman and myself in that respect.

Mr. Maclennan : Of course I accept that intelligence and security information must be protected. My objection is that the creation of an offence under clause 6 will depend on whether the disclosure that occurred in another country was legal. It is information that is to be protected, but the clause ties the offence to the manner in which the information was made public.

Mr. Patten : I am not sure that the hon. Gentleman entirely understands the clause. I shall develop my first example and then give another.

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Under the Bill, most forms of co-operation at Government level will fall not under the security, intelligence or defence heads, but under information relating to international relations. If such information is not protected by the clause, the effectiveness of the co-operation could be threatened.

I give a harder example--my first was rather a burst of generality--of how sensitive information could go unprotected should the Committee decide to accept the amendment. Suppose we were debating with another country, or with a number of countries, the possibility of taking measures against a state in response to its violation of human rights. That is something that we discuss from time to time in international forums--and something we are pressed to do all the time in relation to some countries. Suppose also that in the course of those discussions we provided confidential information as to how our country would enforce the measures.

If that information was leaked by an official of one of the countries with which we were co-ordinating our actions against the state with the bad human rights record, and if the journalist to whom that leak was given published it in this country, the state against which we were contemplating taking action might immediately take retaliatory action against any British citizens resident there. As we know from certain things that have been said in some states this week, such a situation could have harmful consequences.

Under the amendment, the journalist would be free to publish--though any prosecution would be subject to the damage tests. Under the Bill, the person making the disclosure could be prosecuted--but how could he be convicted? He or she could not be convicted unless the prosecution proved that they knew the information had originally been provided by our country to other countries, that it had been provided in confidence, that its disclosure by the journalist, for example, endangered the safety of Britons abroad, and that the journalist knew what he was doing.

11.15 pm

We have had some examples put to the Committee. The example of the EC trade association was an interesting one, but the information that the hon. Member for Kingston upon Hull, West mentioned, even if it were official information, would not fall within the definition in clause 3(5). Therefore, it would not be caught by clause 6. In other words, it would not fall within the definition of international relations as set out in the Bill.

My hon. Friend the Member for Aldridge-Brownhills gave a specific Spanish example. I prefer not to talk about the Gibraltar question, which is a policy issue, but I think it was as good an example as any put to the Committee. I hope that I can reassure my hon. Friend. He was perhaps a bit grumpy with me when I intervened in his speech. I hope he did not think that I was in any sense trying to divide him from the hon. Member for Paisley, South (Mr. Buchan). I was simply trying to get to the facts. If he thinks I was making a cheap political point, I apologise. If he reads Hansard, he will not find me making a cheap political point at any stage.

As regards the example my hon. Friend gave of a report in a Spanish newspaper, there would be no offence under clause 6 if a newspaper in this country published what was leaked to and appeared in a Spanish newspaper following a disclosure without authority by a Spanish civil servant

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