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Column 599unless publication had caused further damage here. In my hon. Friend's case, that would come under clause 3(2) and the jeopardising of our interests abroad--it would be the jeopardising test. It is extremely difficult to imagine circumstances in which any jury would be prepared to convict.
Mr. Richard Shepherd : I know that the Government rely very much on the test of harm as described in clause 3(2), and the anxiety has been about the test of harm being met by clause 3(3)--information of its nature confidential. Although the Government's legal adviser says that it is absolutely certain that that is not so, the Government are to meet the anxiety by redrafting the provision. Is my hon. Friend giving us an undertaking that the Government's amendments will be moved on Report so that the House will have an opportunity to look at how the scheme of things works?
Mr. Patten : I think my hon. Friend was in the Committee yesterday when my right hon. Friend gave the undertaking to reconsider the issue. But I should like to press my hon. Friend the Member for Aldridge-Brownhills a little further. Is he satisfied with the explanation about the position concerning the supposed publication in a Spanish newspaper, in the context of the undertaking given by my right hon. Friend yesterday?
Mr. Shepherd : This is nonsense. Without seeing something, I cannot say whether I am satisfied. I was here yesterday when my right hon. Friend spoke on this matter. He gave an undertaking to redraft the clause. I have asked my hon. Friend the Minister of State whether it will be done by Report. He then asks me--this is the usual circumlocutory route--whether I was present yesterday when the Secretary of State said that he would amend the Bill. The question to which I return is, "Will it be done for the Report stage?"
Mr. Patten : I can only repeat the undertaking that was given yesterday by my right hon. Friend. I hope that my hon. Friend will listen to what I say. On the face of the Bill, as drafted, and not as amended, on the example of the Spanish newspaper that was given by my hon. Friend, under clause 3(2) there would be the possibility of prosecution only if it could be demonstrated that we were jeopardising our interests abroad.
Mr. Shepherd : This is maddening. My right hon. Friend conceded yesterday that there could be a misunderstanding, as the Bill is drafted, and that clause 3(3) triggers off or satisfies the damage test. That is the reason why my right hon. Friend is to amend it. So for my hon. Friend the Minister of State to say that it does not raise the anxiety, as the Bill is drafted, seems to be contradicting the Secretary of State. I do not know why my hon. Friend is getting into a fluff over this ; I was merely asking a very simple question.
Mr. Patten : I never quite know what "getting into a fluff" means, but, with the permission of the Committee, I shall read the words of my right hon. Friend from yesterday's Official Report. He said : "On behalf of the Government, I am happy that the matter should be aired again, if that is the view of my right hon. Friend"-- and there he was referring to my right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour)
Column 600"when it is procedurally in order to do so. If that is on Report, as you have suggested, Mr. Walker, we will fall in with whatever arrangemens suit the Committee."--[ Official Report, 15 February 1989 ; Vol. 147, c. 337.]
My right hon. Friend had to add that conditional "if that is on Report" because that is a matter for selection. [ Hon. Members :-- "Ah!"] No, I am simply repeating for the avoidance of doubt the undertaking that my right hon. Friend gave to the Committee yesterday.
If I were to express a hope, certainly in the light of the strong feelings of my hon. Friend the Member for Aldridge-Brownhills, which I respect, it would be that we can dispose of this matter on Report. May I deal next with the three important points that were raised by my right hon. Friend the Member for Worthing? On the OECD point, my right hon. Friend seemed to be saying--I see that he indicates assent--that the effect of clause 6 is that the disclosure of information provided to another state could be an offence, but if disclosed here before being provided it would not be an offence. I think that that would not be the case, because information about economic matters alone does not become information relating to international relations simply because it is provided to another country or to another organisation.
Mr. Higgins : My understanding from the Bill is that it clearly does. Anything is "international relations" if it is translated from one country to another, as I understand the clause. Therefore, we are in the rather absurd position where something that is not subject to criminal law if it is discovered here and published becomes subject to the criminal law if it is given to another country and then published. The moment that one gives some information on, say, zero-rating of VAT to another country, that is in the sphere of international relations.
Mr. Patten : With great respect to my right hon. Friend, I must say that just because a piece of information is supplied to an international organisation or to another State does not mean that it automatically falls within the ambit of international relations. A lot of information flows from one country to another which does not remotely affect international relations. That is certainly not the effect of clause 3(5).
Mr. Buchan rose--
Mr. Maclennan rose--
"any information, document or other article relating to international relations".
The example that I have given of a change in the rate of value added tax in the context of an approximation of indirect taxation within the EEC is clearly a matter of discussion in international relations. As I understand it, if the information is obtained here and is published, it is not subject to criminal law. But, more importantly, we have no way of telling which way it has been arrived at and which penalty is to be imposed.
"For the purposes of subsection (1) above a disclosure is damaging if it jeopardises the interests of the United Kingdom abroad, seriously obstructs the promotion or protection by the United Kingdom of those interests or endangers the safety of British citizens abroad".
Mr. Higgins : But it is not just a question whether the information is damaging. We know that it is said to be damaging if it is leaked at all because that shows that we cannot keep things confidential.
My right hon. Friend referred to material coming back from Brussels. If I understood his point correctly, a prosecution could succeed only if damage can be proved.
I cannot supply my right hon. Friend with the practices and procedures of the EC countries and the United States for dealing with such information, nor do I think that it is necessary. Here I refer to a point raised by the hon. Member for Kingston upon Hull, West. We have no need for any kind of reciprocal information because we are protecting our interests, not those of any other countries. The Bill has been drafted in the light of United Kingdom experience and the protection of United Kingdom experience here.
The amendment would inhibit the Government from pursuing the most effective means of protecting and promoting Britain's interests, and I sincerely hope that the hon. Member for Caithness and Sutherland will not try to weaken the Bill so radically by pushing the amendment to a Division.
" international relations' means the relations between States". I was referring to relations between states. At the end of that subsection it says :
"which is capable of affecting the relations of the United Kingdom with another State".
The case that I gave of a motor manufacturer in Europe which involved communications of information between Her Majesty's Government and the Commission would qualify. The various countries involved in motor manufacture would be the ones that would be affected.
We shall not thrash this matter out tonight, but I hope that the Minister will write to me about it before Report.
"has been communicated in confidence by or on behalf of the United Kingdom to another State or to an international organisation". Even if we take it that narrowly, it would seem that any information that is communicated to another organisation or state comes within the ambit of the clause. As I was arguing at the beginning, such information may not be of a kind which attracts a criminal penalty within the context of the rest of the Bill, but would seem to do so if it is then communicated abroad.
"any information, document or other article which--
(i) relates to security or intelligence, defence or international relations".
A set of economic statistics does not necessarily relate to international relations.
Mr. Higgins : The approximation of value added tax clearly does. We are much involved in international negotiations about the approximation of value added tax. It is within the scope of the clause and, therefore, it appears to attract a criminal sanction if the information is leaked and then published in this country. There is no dispute that the approximation of value added tax is a matter of international relations. If I have understood it correctly--indeed my right hon. Friend the Home Secretary said as much--if there were a leak from the Treasury about the approximation of value added tax, that is not something which would be subject to criminal sanctions. My hon. Friend must study this and consider my specific example, which is a clear-cut one.
Mr. Maclennan : I share the concern expressed by the right hon. Member for Worthing (Mr. Higgins) about this point. Indeed, it was such concerns that led me to table the amendment in the first place. What I should like to press the Minister on, however, is what he has not dealt with--the fact that this offence depends on the domestic law of the country in which the leak occurred.
As I have said, if a leak about the harmonisation of taxes occurs in a country where it is improper, it appears that that would create an offence in this country under the clause. However, if the information is obtained in a country such as the United States under the Freedom of Information Act, there would be no criminal offence as a result of the publication of that information. I ask the Minister whether it is tolerable that the existence of the criminal penalty should turn on the state of the domestic law of foreign countries. That is monstrous, and I do not know why the Minister did not answer the point earlier. I presume that it was because he had not thought of it and had not been advised. The least that the Minister can do is take this matter away. He should not give us an arrogant reply that suggests that he has actually thought about these matters, when he has not even had the courtesy to reply to the points that have been made.
It is extremely arrogant to reply to the debate in the way in which the Minister has. He has not answered the points which have been made and he has treated the amendment as though it were a frivolous one. It is an extremely serious provision which creates a criminal offence which could result in people being sent to prison for two years. It is about time that the Minister stopped treating the House in this de haut en bas manner. Frequently, in earlier stages of the debate, he has had to come to the House to apologise for getting it wrong. The right hon. Member for Worthing has made an extremely important point. The Minister would know that it is an extremely important point, and he should give an explanation.
Earlier the Home Secretary admitted that the definition under clause 3(5) was unsatisfactory. In answer to an
Column 603intervention from the right hon. Member for Chesham and Amersham (Sir I. Gilmour), the Home Secretary accepted that
"In this section international relations' means the relations between States"
was not of itself an adequate definition. He undertook to consider how that definition could be tightened up. The passage that the Minister quoted had nothing to do with the undertaking given by the Home Secretary. The Minister must reconsider this matter in the light of the points made in the debate.
Furthermore, the Minister's answer to the hon. Member for Kingston upon Hull, West (Mr. Randall) was wrong. He was wrong to say that the matter was not covered by clause 3(5). The question of specifications of cars presented by this country to the Commission in Brussels to become the subject matter of a European Community directive is plainly an international matter as defined in the clause. By sweeping such propositions aside in a cavalier manner, the Minister again showed his contempt for the proceedings of the Committee which has characterised his whole approach to the Bill from the outset. It is about time that he treated the Committee with some seriousness. Obviously he expects us to let the whole thing go through without any more question just because he said it.
Mr. Corbett : In response to a question from the hon. Member for Southend, East (Mr. Taylor) the Minister gave an assurance that it was not the Government's intention to use the provisions in clause 6 to inhibit the publication of evidence in relation to fraud which originates in this country which is to be sent to Brussels for action to be taken. He gave the hon. Member for Southend, East a specific undertaking that the clause would not be used in that way. However, clause 4(2)(a)(iii) relates to information which
"impedes the prevention or detection of offences".
Quite properly, as fraud is involved, the police could argue, "For heaven's sake, if that gets out it will inhibit us in properly dealing with the detection of the suspected offence." There is at least the possibility that the police might use that argument when they are undertaking this kind of special investigation. That should at least cause the Minister to question the blanket assurance that he gave to his hon. Friend the Member for Southend, East.
Clause 6 ordered to stand part of the Bill.
This amendment is more by way of inquiry and to provide more background. The amendment is intended to meet the possibility of someone who improperly receives information and destroys it and therefore is not able to return it. We are all mindful that there have been several newspaper instances and I will not base my arguments on them. However, what happens if the information has been
Column 604destroyed and cannot be returned and the person cannot confirm to the satisfaction of the authorities that it has been destroyed? I want clarification on that.
Mr. Foot : Although the hon. Member for Aldridge-Brownhills (Mr. Shepherd) has introduced his amendment as if it were a minor amendment, it has many implications and it touches on other clauses which we should have the opportunity to discuss.
I accept that problems arise with the guillotine and I have some sympathy with the hon. Member for Caithness and Sutherland (Mr. Maclennan). The Minister's difficulties arise through the operation of the guillotine. I am sure that if it had not been for the operation of the guillotine, the Minister would not have given such a clumsy answer to one of his colleagues who was seeking a reassurance about the concession made by the Home Secretary. We have all sat through two consecutive days' debates on the Bill and if it had not been so late at night I am sure that the Minister would have leapt to his feet and accepted the need for an amendment which the Home Secretary agreed and there would have been no trouble on that score. The right hon. Member for Worthing (Mr. Higgins) also put forward very serious arguments, and in a proper Committee stage without a guillotine the Minister would have had a chance to consider what had been said before the debate on clause stand part. But the possibility of any debate on clause stand part has been removed, which makes consideration of the Bill much more difficult.
Thanks to the way in which the guillotine has fallen, and thanks to its crude operation, we have not discussed clause 7 at all. Clause 7, however, touches on amendment No. 40, which tries to remedy the position, although whether it could do so is very doubtful. Although clauses 7 and 8, like clause 6, have wider aims--wider, indeed, than some of us had previously understood the Bill to comprise--they try in part to deal with those who have authority to use information that they obtained as Ministers, specifying how they must gain the authorisation. They would have to comply not only with clause 8 and the appropriate amendments, but with clause 7 as well.
It is clear from even a rough reading of the two clauses that if they had been in operation over the past 30 or 40 years far and away the worst offender against them would have been Sir Winston Churchill. No one has ever carted away documents from No. 10 Downing street--or wherever else he had been--on such a huge scale. That was very much to the benefit of the reading public, and, I would think, to the national interest as well. It certainly benefited the gaiety of nations for Sir Winston to be able to take away such huge quantities of documents and to use them as he did between 1945 and 1951. I was in the House at the time, and I may say that Sir Winston was much better employed in writing his memoirs than he was in conducting the opposition here--although he managed to perform the two tasks at the same time.
Let us suppose that Sir Winston had had to go through the details of each of those documents and to obtain authorisation in each case. Let us suppose that he had been told that if he did not do it properly he would be had up. I assure the House that I am not exaggerating. Winston Churchill thought that the state belonged to him, in a sense--that the state owed him a living. To some extent it did, because his services had been so great. Incidentally, this
Column 605characteristic ran in the family : it dates back to the days of the Duke of Marlborough, who also did some services to the country and who carted away huge quantities of state documents, long before such nonsense as this was laid before the House of Commons.
It is a question of some interest and importance how the legislation will apply to, for instance, Ministers writing their memoirs. There has been quite a lot of controversy in the newspapers about that recently. Until a few years ago there was an absolute provision that if Ministers did not go to the head of the Cabinet--whoever that might be--in the proper way and obtain permission, they would be infringing the rules laid down by the Cabinet Office. Of course, it was never exactly clear how the Official Secrets Act applied to such operations. In a sense, the matter was covered by authorisation of some form being given. I suppose that what would be claimed about clause 7--which we are not allowed to discuss under the guillotine--is that the form of authorisation is stated and touched upon in clause 8. Here again, the Committee should look at these matters properly, have the chance to examine them and the chance to put up amendments to the Government, on which the Government could make their replies. That is how legislation of this kind should be carried through. But it is the Government's decision that we are not allowed to discuss clause 7 in detail --or in any sense. Perhaps people would like to read it all. I do not know if I would be in order to read it out now--I should think that I would be. Anybody who reads it will see that it is trying to deal with this subject, although it has been excluded from our discussions. It is partly governed by clause 8.
The hon. Member for Aldridge-Brownhills has sought to have an amendment accepted that could be some protection, but it is not sufficient protection. That emphasises how wrong it is for the Committee to be forced to discuss such matters with no possibility for further amendments at such a late stage.
Mr. Gorst : Listening to the right hon. Gentleman has made me reflect. I wonder whether he is able to answer my rhetorical question. We have about 15 minutes, in which the Minister may also be able to reply, before we finish the Committee stage. Has the right hon. Gentleman wondered whether it would be appropriate, in view of all the uncertainty about what might be regarded as classified information that could be used without damage, and the reverse, for there to be machinery available so that newspapers could ring someone up and say, "Can we use this information? Is it classified?"? Perhaps we should have a whole Ministry to deal with the subject.
Mr. Foot : That might be one way of dealing with the matter. There was a question raised when somebody was arguing about the operation of the Official Secrets Act 1911 only a few months ago. An editor asked a Minister, "How should we deal with such a question?" The reply was, "Ring up No. 10 and see whether you can publish". Some of the other journalists did not think that that was the most sensible or liberal way to deal with the question.
I do not intend any mockery of the Minister when I say that on this, as on previous occasions, he has stood up to the blast of argument as well as he is able in the circumstances. But he should agree that it is a bad way to conduct legislation of this nature in the House of that
Column 606Commons. If we consider the debate on the amendment or the debate on clause 6 and the position of journalists, what should have happened is what would have happened in the case of any other interests outside the House. There was a chance for the Minister to go to the editors, the Newspaper Publishers Association or even the National Union of Journalists. Of course, it is terrible to suggest to the Government that they should ever have discussions with the people who do the work. That is an outrageous proposition, which the Minister would throw out of the window immediately.
But let us consider the Newspaper Publishers Association, the Guild of British Newspaper Editors or the people who have professional qualifications in these matters. We are introducing a maze of new regulations through which they will have to steer if they are to do what they see as their duty to publish what they are entitled to publish and what the British people should be able to read. Why were the people who will have to operate the legislation not consulted? If it had been the farmers, there would have been plenty of consultation. If other people had been involved, there would have been consultation. But I do not think that there has been any consultation with the people in the newspaper business, who will have to operate these rules. If there was any such consultation, the results of it have not been translated into the Bill.
We have not much time left on the Bill and it is a great pity that such a Bill should be put through the House of Commons in such a way. That is not an attack on the Minister, or the Home Secretary, alone. As I said in a previous debate, I have listened carefully to what he and others have had to say on specific clauses. They have made a much better case on some clauses than on others, but on some they have hardly made a case at all.
Mr. Bermingham : Has my right hon. Friend considered the problems that might arise in respect of a communication that is purely oral? How does one comply with a request for the return of an oral communication or prove that one has disposed of a piece of information conveyed orally?
Mr. Foot : The Government have not even caught up with the telephone, let alone with the other modern inventions, which are beyond me. They do not seem to know that journalists use that extraordinary modern instrument.
The clauses need to be properly examined, and that is what a proper Committee stage would have achieved. Instead, we have had an absolute travesty of a Committee stage. These clauses are not as important as the preceding clauses, but they are just as badly drafted and are just as likely to give rise to future difficulties. Hon. Members say, "The House of Lords had better come to our rescue." I have never been very much in favour of the House of Lords coming to our rescue. I think that the House of Commons should do its duty, but as the Government have denied us the right to do our duty, I hope that others will look very carefully at clauses 6, 7 and 8, which we have had not the slightest chance of examining in any proper detail.
I should like to make a suggestion about amendment No. 40, which refers to a person's being guilty of an offence if he fails to comply with an official direction for the return or disposal of documentation. I believe that the direction
Column 607says that a person must not retain a document after receiving the official direction. Essentially the official direction will be a piece of paper saying, "Mr. Smith. Reference XYZ. Please return or destroy the information by 10 o'clock on such and such a date." It would be a very simple thing. I am appealing for simplification. I think that the amendment would make matters clearer. We are constantly told that legal language is too difficult for people to understand and that we should create laws that people can comprehend. The amendment would be an improvement. It would be better to link the guilt with a person's retaining information after receiving an official direction rather than his failure to comply with an official direction. I shall leave it to the Minister to see what we can do about that.
The proposal is a good one, which would improve the Bill, and we can use this opportunity to see whether the Minister is his own man. I am referring not only to the hon. Gentleman but to the Home Secretary when I say that very little has been given away during our proceedings. The Bill has hardly been changed at all. We have just about squeaked a Report stage. This is a sad occasion. As a result of the Bill, the Government have got themselves a bad reputation even among their own supporters. I refer the House to the article in The Guardian today which said that the Bill is highly restrictive.
Mr. Bermingham : Even allowing for the amendment in its current terms if the information is oral, as leaked information very often is, can my hon. Friend perhaps give the Minister some advice, if the Minister is prepared to listen, as to how one disposes of it? How could one prove that one had got rid of it or that one had forgotten it? [Interruption.] If the hon. Member for Derby, North (Mr. Knight) wants to make a pertinent comment it would be awfully nice if he had the good manners and courtesy to get to his feet and say so. But let us leave that aside.
The fact is that the information is not just in documentary form. It does not come that way ; it very often comes in oral form. How does this clause deal with oral information? It is nonsensical that the Minister has failed to address this point, and it is nonsensical that the Bill does not deal with it.
On the question of what happens after oral disclosure takes place, I still say that, instead of reading "Resist, resist, resist" from the briefs provided by the Department, the Minister ought to concede this point. That would make this a very special occasion, bearing mind the fact that we are in the last few minutes of the Committee stage. The Minister would be improving the legislation and making it easier to read. It would be a worthwhile thing to do. Indeed, it would enhance the Minister's political virility. He would be his own man. He would actually be making a decision at the Dispatch Box, and that would enhance his position. We are giving him a great chance to end the Committee stage with a big bang by actually accepting an amendment.
Mr. John Patten : What an extraordinary set of statements from the hon. Member for Kingston upon Hull, West (Mr. Randall), who just wandered into the Committee, for the first time, towards the end of the day and picked up the brief, presumably because his hon. and right hon. Friends had exhausted themselves by their exertions.
The right hon. Member for Blaenau Gwent (Mr. Foot) said that it was extremely important that when we looked at issues that could affect the media and journalism in this country, we should consult. In fact, we did have a number of consultations. The right hon. Gentleman mentioned the Guild of British Newspaper Editors. Well, respresentatives of that organisation came to see me on more than one occasion to discuss a number of these issues. Indeed, some of the changes that were made between the White Paper stage and the Bill stage--I refer to the crime category, with which clause 4 deals--reflect, to a certain extent, arguments that were put forward by those people, and my right hon. Friend and I have told them so on a number of occasions.
My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) put forward an innocent-sounding argument. He asked what would happen to an unfortunate person who had been given a bit of confidential information. Of course, under the Bill it is not an offence to receive information, as is also the case under section 2 of the Official Secrets Act. My hon. Friend talked about such a person, rather than giving the information back, shoving it in the fire or mincing it up. Presumably such a person would have no difficulty at all in proving to the authorities what he had done. The unfortunate side effect of my hon. Friend's amendment--and I am sure he did not intend this--is that it would allow people to destroy information, to destroy documents, to destroy articles, not belonging to them, and to prevent those who had committed a criminal offence from being identified.
What we are dealing with are not trivial papers but articles that could put lives in danger or threaten the security of the country. We could be talking about papers that refer to the design of a weapon or about a computer disk, which is an article, containing the names of security and intelligence service personnel. Are we really to say that once such a document or article is out of official hands it can never be recovered? I am sure that my hon. Friend the Member for Aldridge-Brownhills did not intend that to be the case--
It being Twelve o'clock, The Chairman-- proceeded, pursuant to the order [13 February] and the resolution [15 February], to put forthwith the Question already proposed from the Chair.
Column 609The Chairman-- then proceeded, pursuant to the order [13 February] and the resolution [15 February], to put forthwith the Questions necessary for the disposal of the business to be concluded at Twelve o'clock.
Clauses 8 to 16 ordered to stand part of the Bill.
Schedule 1 agreed to.
Motion made, and Question put, That this schedule be the second schedule to the Bill :--
The Committee divided : Ayes 178, Noes 33.
Division No. 100] [12.01 am
Arnold, Jacques (Gravesham)
Arnold, Tom (Hazel Grove)
Baker, Nicholas (Dorset N)
Bennett, Nicholas (Pembroke)
Blaker, Rt Hon Sir Peter
Boscawen, Hon Robert
Bottomley, Mrs Virginia
Browne, John (Winchester)
Buck, Sir Antony
Carlisle, John, (Luton N)
Carlisle, Kenneth (Lincoln)
Coombs, Anthony (Wyre F'rest)
Coombs, Simon (Swindon)
Cope, Rt Hon John
Currie, Mrs Edwina
Davies, Q. (Stamf'd & Spald'g)
Davis, David (Boothferry)
Emery, Sir Peter
Fenner, Dame Peggy
Fishburn, John Dudley
Fowler, Rt Hon Norman
Fox, Sir Marcus
Goodson-Wickes, Dr Charles
Gorman, Mrs Teresa
Gower, Sir Raymond
Griffiths, Sir Eldon (Bury St E')
Griffiths, Peter (Portsmouth N)
Gummer, Rt Hon John Selwyn
Hamilton, Hon Archie (Epsom)
Hampson, Dr Keith
Hargreaves, Ken (Hyndburn)
Heseltine, Rt Hon Michael
Higgins, Rt Hon Terence L.
Hogg, Hon Douglas (Gr'th'm)
Hordern, Sir Peter
Howarth, Alan (Strat'd-on-A)
Howarth, G. (Cannock & B'wd)
Hughes, Robert G. (Harrow W)
Hunt, David (Wirral W)
Hunt, John (Ravensbourne)
Hurd, Rt Hon Douglas
King, Roger (B'ham N'thfield)
Knight, Greg (Derby North)
Leigh, Edward (Gainsbor'gh)