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Mr. Gorst : Probably for the purposes of clarity, my hon. Friend is slightly oversimplifying the situation. His premise is that the communication that he or any other Member of Parliament receives will be from a named person. However, as any Member of Parliament who has been here for a short time will know, one often receives anonymous communications. If we receive anonymous communications, that poses a new set of problems. If the amendment is not accepted, people will be more inclined to send anonymous communications than named ones. Will my hon. Friend deal with that aspect of the problem too?
Mr. Aitken : It would certainly make the role of a Member of Parliament even more innocent if he were to act simply as a post office for anonymous communications. I believe, however, that, if the material were entirely anonymous, most of us would not communicate it to Ministers of the Crown, but would throw it straight into the wastepaper basket.
There are clearly variations on the theme. Even if a repeat performance of a former head of the anti-Soviet division and the Security Service telling a Back Bencher that the head of the Security Service is a Soviet agent is unlikely, it is nevertheless likely that some Crown servant may approach his Member of Parliament and tell him a story that the Member feels he must pass on. What will be the position of the Member if he passes on that information? As I understand it, under the Bill he could quite easily-- depending on the goodwill of the prosecutor or the Attorney-General--be heading for Wormwood Scrubs.
Mr. David Winnick (Walsall, North) : In the case of Sir Roger Hollis, if some members of the Security Service felt that there were serious allegations that could not be dealt with in a manner that was considered satisfactory, would
Column 509it not have been better for a Member of Parliament to intervene, because either way that might have cleared up the matter? Sir Roger Hollis's name might have then been cleared. However, now, whether he was guilty or not, there will always be a question mark about his integrity. If he was innocent--as one hopes he was--the matter would have been resolved at the time. Perhaps if a Member of Parliament had had that information in his hands and had pursued it, the outcome would have been much better.
Mr. Aitken : How the members of the Fluency committee of the security services and the group of Security Service officials known rather inappropriately--in view of their snow-white hair and elderly demeanour--as the young Turks tried to transmit their fears to higher authority is a long and tortuous saga. It had many amusing byways, including one member insisting on ringing the doorbell of No. 10 Downing street and not leaving the front hall until he was shown to the office of the Cabinet Secretary. They did try to transmit their fears about major penetration of the security services.
I am focusing on the narrow point of the role of a Member of Parliament. A Member doing all the right things, operating entirely correctly and honourably and in accordance with what all sensible right hon. and hon. Members would feel right and proper, would have no protection under the Bill. The only protection that I can envisage is his reliance on the Attorney-General's discretion not to prosecute him. I have considerable faith in the Attorney-General's discretion, certainly when the Attorney- General is as reasonable and as eminent a figure as my right hon. and learned Friend.
I now come specifically to amendment No. 74. Do we need in statute any better protection for Members of Parliament? We do not seek any special privileges, but we must recognise that in our role as constituency Members, holding surgeries, receiving correspondence and listening to the grievances of our constituents, we might face such a situation as I faced in early 1980.
I believe, therefore, that there is merit in the amendment of the hon. Member for Caithness and Sutherland (Mr. Maclennan). My right hon. Friend the Member for Brighton, Pavilion (Mr. Amery)--who unfortunately is unable to be here because he has 'flu--also feels that some special legal status should be written into the Bill. There is a case for doing something along the lines of the amendment, and I therefore cautiously support it.
Mr. Foot : I am glad to follow the hon. Member for Thanet, South (Mr. Aitken) in the case which he was putting. I hope that the Government will give serious attention to the amendment or to one that could achieve the same absolutely clear effect. This is one of the most important aspects of the Bill that we still have to debate. I am not saying, however, that some of the proposed amendments do not also provide ways in which we can proceed, and I have no doubt that my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) will be putting our case. After all the discussion, we must get the matter cleared up before we leave this part of the Bill.
When I saw that the Leader of the House was present, I thought that he would intervene on the House of Commons aspect. I am very glad to welcome both him and
Column 510the Attorney-General to our debate. It appears that our appeals for his attendance have carried great weight in the Government, and for the first time we have the Attorney-General present. Now that he has come, I hope that he will not be gagged. I hope that he will have every opportunity of putting forward his case on this matter, which is one which has been brought to the attention of previous Attorneys-General. I am sure that the right hon. and learned Gentleman would have not come to the House without all the detail at his very skilled fingertips. We shall have the advantage of his views later.
I still have hopes that the Leader of the House may participate in the debate. I am not saying this in denigration of the Home Secretary, who is capable of dealing with some parts of the Bill, but perhaps the Leader of the House and the Attorney-General are better qualified to deal with this part.
Of course, the case in which the hon. Member for Thanet, South and others were involved has been recalled previously in our debates and in our approach to the idea of having a new Official Secrets Act. One of the memories of the House of Commons on this sort of point is that of the Sandys case. I shall not recite it all, but I believe that hon. Members have not understood exactly the conclusion of that case. That makes it all the more important that, when we get a Bill that carries out what the House presumably wants to be the law to govern these matters for the next 20 or 30 years--as long perhaps as the 1911 Act was the law, but let us do better than that--we are sure of the rights of the House of Commons and of Members of Parliament. We must be sure about the rights of hon. Members. Although the Sandys case happened under a Conservative Government which had a very powerful majority, we must ensure that there is no recurrence of the interference in the rights of hon. Members which was tolerated by the Conservative Government in 1938 and in 1939. When I say that, I am speaking not only on behalf of the Labour and Liberal Members who protested so strongly then, but on behalf of the very small minority of brave Conservative Members who were determined to stand by Winston Churchill as he was conducting one of the most difficult fights of his career. He had fewer followers than the hon. Member for Thanet, South, who has been tabling amendments to this Bill. Hon. Members can guess, therefore, how difficult it must have been to put the case. The Conservative Government in 1938 had a Chief Whip who believed that all the matters should be pushed through. The present Leader of the House is very different, although sometimes I think that he has adopted Captain Margesson as his model and wants to live up to the way in which Captain Margesson forced through some of the worst measures that have ever passed through the House of Commons at some of our most dangerous moments.
The crisis of the Duncan Sandys case was never concluded. No decision was taken after a Member of Parliament had been arraigned by a Minister because he tried to bring to the attention of the Minister's Department some of the deficiencies in the plans for the defence of London. Those were very important matters, but the Government of the day tried to interfere with a Member of Parliament carrying out his duties. The Government acted against the person who went to Mr. Duncan Sandys and provided him with the information. The Duncan Sandys case occurred at a critical moment in the history of this country. Having lived through that
Column 511experience, the House should have said, "Well, let's clear up the matter. Let's make sure we never have a Government who exercise ministerial power in the way in which that Government acted through Mr. Hore-Belisha." He thought, and no doubt was advised by the Law Officer of the day, that he was making perfectly proper use of his powers under the Official Secrets Act.
Churchill did not bring the matter to the House, because he thought that the Margesson-Neville Chamberlain majority would be used against him to crush his case. He had no confidence that if he brought the case to the House, he would receive any sympathy even though such great issues for the future and safety of the country were involved. Therefore, the matter was left.
No decision had been taken by the House of Commons by the time the second world war broke out. No decision had been taken to condemn the actions of Hore-Belisha and the others. There was some slight protection in the sense that parts of the matter were referred to the Committee of Privileges. To some extent, the Committee upheld Duncan Sandys and his supporters. That was not an absolute protection and even the Committee of Privileges, as far as I understand the full details of the case, did not report to the House so that the House could make a final decision. The matter was left in the air, and that happened in a very important case involving such an eminent Member of this House as Churchill who had shown that he was much more aware of the safety of the nation and the country's public interest than the Government were. Even in those circumstances, the matter was not brought to a proper conclusion.
The nearest that the matter came to a conclusion was when Churchill--for reasons that I have explained, he did not come to the House, because he did not think that he would receive fair treatment here at the time--wrote to the Evening Standard anonymously, which was a most curious development, and explained how the Official Secrets Act should be applied in future after the experience of the case. He said that it should be applied to spies and people who attack the safety of the nation, but that there must be an obsolute exclusion from the operation of the Official Secrets Act for journalists and others obtaining information of that kind and, of couse, for Members of Parliament.
I have no doubt that if Churchill had had his way and had been able to reform the Official Secrets Act in 1939 or 1940, he would have insisted on a clause to prevent the kind of treatment that he and Duncan Sandys received at the hands of the Conservative Government. Part of that protection would have applied to a Member of Parliament and his rights if he was approached with information. I do not want to give the present Government any easy get-out. An alteration to the clause or to the part of the Bill in which these matters are laid down may be necessary. In some way it should be stated that it will be impossible for the circumstances of 1938 and 1939 to recur. When we raised these issues a few weeks ago, the Minister of State replied to the debate as if the matter was dealt with and there was no need to worry. That is not right. Now that we are clarifying the Official Secrets Act--leaving aside our arguments about whether some parts make defence more difficult for people who want to protect themselves --we must ensure that the approach to
Column 512a Member of Parliament is covered. It will not be covered simply by leaving matters as they are. It will not be covered unless there is something specific in the Bill. It will not be covered simply by giving general assurances.
If the Home Secretary says that these matters could go to the Committee of Privileges, that will not do. Some matters could be dealt with by a reference to the Committee of Privileges and part of the Sandys case was referred to such a Committee, but that was not the solution.
The Home Secretary should include a reference in the Bill to how an approach to a Member of Parliament is protected. The rights of hon. Members must be explained. We must ensure that, as the law is being changed, the folly, monstrosity or crime--whatever we want to call it--that occurred in the few years before 1940 will never happen again. Now that the Home Secretary has legal assistance, I hope that he will give us that guarantee.
Mr. Kenneth Hind (Lancashire, West) : While I appreciate that it is a matter of grave concern that people who are notified or public servants who are party to confidential information should be able to talk to Members of Parliament, the major concern must be what hon. Members do with that information.
Under amendment No. 74 there is the right for a civil servant to disclose information to a Member of Parliament. If I read the amendment correctly, the hon. Member for Caithness and Sutherland (Mr. Maclennan) is suggesting that what the Member of Parliament does with the information, irrespective of the damage or harm that it may do, is totally in his hands. The Member of Parliament is in no way responsible for looking after the national interest or for avoiding damage to the nation's interest.
I hope that when he responds to the debate, the hon. Gentleman will say that that is incorrect. I suggest that he looks carefully at the earlier clauses in the Bill, particularly clause 5. There is nothing within those earlier clauses to prevent either a civil servant or an official of the secret service who is notified from passing information to a Member of Parliament, provided that the Member uses the information responsibly and not in such a way as to cause harm to the national interest. Such a person is already covered by the Bill. If information is disclosed to us, as Members of Parliament, and we use it responsibly--there are a number of ways in which we could use it that would pass the harm test--we will be covered by the Bill and the amendment will be unnecessary.
Mr. Eric S. Heffer (Liverpool, Walton) : The hon. Gentleman is advancing an amazing argument. Did he not see or read about what happened in the United States over the Watergate scandal? Does he actually think that President Nixon and the United States Government thought that what they were doing was in the public interest, and was not damaging to it? Does he not understand that, if disclosures had not been made, the Watergate scandal would never have come out and people
Column 513would never have known about it. Without disclosure such matters remain hidden. Does the hon. Gentleman live in the real world?
Mr. Hind : The hon. Gentleman has a point, but he must bear in mind the fact that the Bill covers not only that type of information--which obviously points to the misdoings of the Executive, and should be exposed-- but sensitive information that could cause much damage to the nation if exposed. That is why the harm test exists.
I say that Members of Parliament should use such information responsibly because it is up to them to decide to which category the information relates. There is obviously the sort of information that was mentioned in an earlier debate--the information passed by Captain Scott to one of his relatives during the last war about the state of our tanks in the western desert and our inability to defend them against German guns. Such information could have been passed to a Member of Parliament who could have used it responsibly through the channels open to him--the Ministry of Defence, the Foreign Office or the appropriate Minister--saying that information had come to his notice and something should be done about it. No harm would then have been done to the national interest, and the Germans would not have been aware that we were considering the circumstances and taking the appropriate measures to deal with them.
Mr. Maclennan : If the hon. Gentleman looks at clause 7(3), he will see that the member of the public into whose hands the official information comes has no proper channel of communication other than through a Crown servant. How many of the hon. Gentleman's constituents know Crown servants to whom it is appropriate that they should convey prohibited information
"in accordance with an official authorisation"?
What would that mean to the hon. Gentleman's constituents who might come into possession of extremely sensitive information? What would be the proper channel for them to use? The clause seems to make it impossible to communicate such information without committing an offence.
Mr. Hind : The hon. Gentleman ignores the fact that the harm test covers the matter. Surely there is no reason why a person who came into possession of such information should not approach his Member of Parliament, tell him of the circumstances and say, "I wish you to treat this information appropriately, with all possible responsibility and in confidence." Provided that no harm stemmed from the disclosure of the information, no offence would be committed. There is no reason, even within the present framework of the Bill, why that could not be done. The basis of the offence--which is relevant--is the damage that is done to the national interest. These debates have constantly ignored that point.
Mr. Maclennan : The hon. Gentleman's point about the harm test is a red herring in this context. How is a lay member of the public into whose hands the protected information falls to determine whether its disclosure will cause harm? The existence of a harm test will not offer him any practical assistance in determining what to do with the information. If it is sensitive information, he must decide whether to put it in the fire or whether it warrants official action. The only choice open to him under clause 7(3) is to
Column 514pass the information to a Crown servant, but in my view it would be more appropriate for him to submit it to his Member of Parliament.
Mr. Hind : Crown servants are bound by the code contained in the Bill, and they include police officers. Why could not the person to whom the hon. Gentleman referred approach a police officer with the information? Will the hon. Gentleman show me where in the Bill there is any requirement for a Member of Parliament to be bound by the same code of practice as a Crown servant to act in the same responsible way? It does not exist.
There is nothing in the Bill to stop Members of Parliament using the information in whatever way they wish. Their actions are not controlled in any way, and that creates a charter for
irresponsibility for people who wish to abuse the national interest for political reasons.
Clause 5 perfectly covers the circumstances that the hon. Gentleman has described. Members of Parliament have a responsibility to act in the national interest. I appreciate that we have to evaluate what is in the national interest, but we have channels open to us to do so. All those people whom the hon. Gentleman has brought to the attention of the House have access to police officers--who are Crown servants--to whom they can turn.
Mr. Hattersley : I intervene principally to urge the Home Secretary- -if we are to be privileged to hear him speak--to make an early statement on these matters. We were tempted with the news that the Leader of the House might speak, but I understand that the clauses have been rearranged so that he may merely sit here rather than participate in the debate.
I hope that the Home Secretary will speak, for two reasons. First, a problem of the guillotine is that trenchant speeches are followed by an inadequate reply, with no opportunity for hon. Members to pursue a Minister after he has made one statement. Secondly, perhaps in contradiction to that first point, I hope that the Home Secretary will clarify some points that desperately need clarifying and bring the debate back into the realms of reality, particularly in light of what was said by the hon. Member for Lancashire, West (Mr. Hind). The hon. Gentleman seems to be talking about a different Bill. As I understand it, clause 7 applies to the Bill as a whole. As it interprets the Bill as a whole, nearly all the cases of importance are not covered by the harm test. Clause 1 is the important clause in interpretation. It prompted the example given by the hon. Member for Thanet, South (Mr. Aitken). Yet the hon. Gentleman talks as though the harm test would solve these problems. He either has not read the Bill or does not understand it. I would not dream of correcting him as categorically as he needs correcting, but I hope that the Home Secretary will put him right and explain that there are categories of public servants.
With respect to the hon. Member for Caithness and Sutherland (Mr. Maclennan), it will not be the man in the street or the Caithness crofter who comes to his Member of Parliament to tell him some crucial information that he needs to know. It will be a public servant or a retired public servant. They are the people of whom we spoke in the Sandys and the Churchill cases. We are considering not the man in the street but the man with special information which he thinks, in the interest of the state, should be conveyed to a Member of Parliament.
Mr. Hind : Does the right hon. Gentleman not agree that a present civil servant, a secret service officer or a retired official will still be subject to the harm test in the situation that he has described?
Mr. Hattersley : Of course I do not agree. I do not know how anybody who has read the Bill or who has heard our discussions can believe that a civil servant in the Security Service, covered by clause 1, is subject to the harm test. The first two days of debate were concerned with the proposition that the security services were not covered by any harm test, but had an absolute obligation. If the hon. Gentleman does not understand that, we shall not make much progress in this matter.
I want to consider the man who is not covered by the harm test and who has information that he thinks important to convey to a Member of Parliament, as in the Churchill or Sandys cases. I shall make my position clear. I am far more worried about protecting the informant than about protecting the Member of Parliament. The hon. Member for Lancashire, West was wholly wrong to say that a Member of Parliament is in any way protected by the Bill. The protected categories are stipulated and Members of Parliament do not number among them ; ergo, they are not protected. I have sufficient faith--if that is the word--in the British establishment to believe that in the modern circumstances, even the Attorney-General--a man of undoubted objectivity and probity--would think twice before prosecuting a Member of Parliament for receiving that information or for raising it in the House.
Mr. Hattersley : They will certainly be protected in their use in the House of information supplied to them, but the hon. Gentleman will recall that the Home Secretary said earlier that, were I or the hon. Gentleman to receive protected information, although the House of Commons would protect when we used the information here, if either of us went to St. Stephen's entrance and repeated the information outside, that would be a different kettle of fish.
There would be no legal protection for him or me were we to use that information outside, but I am sceptical about whether the Attorney-General would mount a prosecution, except in the grossest and most extreme circumstances. I give way to the hon. Gentleman, if he is still interested.
Mr. Budgen : Does that not give rise to an unsatisfactory anomaly between Members of Parliament and members of the public? The right hon. Gentleman is really saying that he supported the decision taken in The Daily Telegraph case, when my hon. Friend the Member for Thanet, South (Mr. Aitken), who was then a young member of the public, was prosecuted, as was the editor of The Daily Telegraph, whereas Sir Hugh Fraser, who was then the right hon. Member for Stafford, was not prosecuted, although he had done exactly the same thing, simply because he was a Member of Parliament and a Privy Councillor.
Mr. Hattersley : I am always sceptical when a question begins by asking whether what I am really saying is something other than what I said. I assure the hon. Gentleman that I am wholly on his side in the drift of what he said. I do not believe that a Member of Parliament should have the advantages that I have described. I merely suggested that in a wicked world --even the Attorney-General inhabits the same wicked world--it is more likely that a Member of Parliament will escape prosecution than an individual. That is why I said that my principal concern was not for the Member of Parliament who received the information but for the individual who passed it on. It is that individual whom I want to protect.
Mr. Dalyell : Does my right hon. Friend accept that, although I do not pretend to be able to read the mind of the Ponting jury, it seemed that it weighed heavily with the jurors that, instead of running to the press with information that could have come only from one of the people to whom my right hon. Friend referred, who knew a heck of a lot about the particular subject and how the House of Commons had been deceived, I gave it to the Chairman of the Select Committee on Foreign Affairs, so it was deemed to be a proceeding in Parliament? That is an important point in backing up my right hon. Friend's argument. If these matters are kept as proceedings in Parliament, that may weigh with juries.
Mr. Gorst rose--
Mr. Hattersley : I shall not give way again because, 10 minutes ago, I said that I would intervene briefly, in the hope that I might intervene again after the Home Secretary had made his statement. I have been helped by so much support from hon. Members of all parties that I have gone on longer than I intended.
I want to make a point to the Home Secretary in the hope that he will let us know the Government's views. It seems to many hon. Members that one of the essential elements in our freedom is the right of a man or woman to approach a Member of Parliament on any issue about which they feel the Member of Parliament should know. For a constituent to be prevented by law from telling his or her Member of Parliament some item of information that the constituent believes should be passed on seems to many of us to be a basic contradiction of the liberties that should characterise this place.
I ask the Home Secretary to tell us whether the Government will incorporate amendment No. 74 in the Bill and, if the Government are not prepared to do so, what their objections are. Are the Government saying that Members of Parliament cannot be trusted? Are they saying that the mere fact of pasing information on, in clause 1 cases, is a danger and that a total limit must be placed on all circumstances, whether there is any real need for it or not? We need to know at this early stage whether the Government are prepared to incorporate amendment No. 74 or something similar, or their objections ; otherwise we shall not have the proper debate that the subject warrants.
Mr. Richard Shepherd : I support the drift of the amendment. It is important against the background of the saga through which we arrived at the Bill, when one remembers the actions that have been pursued through the courts. The House will recall that during those actions the final judgment that my right hon. and learned Friend the
Column 517Attorney-General submitted in the case against sundry newspapers made certain contentions. Lord Griffiths then made an observation. In saying that there was an unexceptionable and lifelong duty of confidentiality for those civil servants covered by clause 1(1) and the designated or nominated class of persons, he expressed an anxiety. He said :
"theoretically, if a member of the service discovered that some iniquitous course of action was being pursued that was clearly detrimental to our national interest, and he was unable to persuade any senior members of his service or any member of the establishment, or the police, to do anything about it, then he should be relieved of his duty of confidence so that he could alert his fellow citizens to the impending danger."
That proposition was behind the public interest defence that we tried to insert, which the Government have seen off. The amendment is another route to provide a safety valve in the extraordinary circumstances envisaged by Lord Griffiths, that if everything went wrong, there should be a legitimate way of alerting one's fellow citizens. It seems wholly appropriate that the last line in a democracy should be those who are elected to represent the public's interest in the national forum--the House of Commons.
Mr. Gorst : Suppose that, under privilege, we could reveal the circumstances that my hon. Friend has in mind. Is my hon. Friend not worried that, as prior publication is no defence, the press will not have the defence that the information has been published in the House if it carries the contents of a speech--unless we can get an assurance that the privilege that protects the reporting of our proceedings will be carried forward regardless of what the Bill says?
Mr. Shepherd : That presupposes that it is necessary to expose the iniquity on the Floor of the House. Each individual Member must judge that for himself. I was deeply disheartened by the emphasis placed by my hon. Friend the Member for Lancashire, West (Mr. Hind) on what he perceived to be a responsible Member. One of the glories of this place is that those judged irresponsible often turn out in the long run to be the most responsible. This may sound like special pleading, but in this solemn and over-pompous place it is often judged that quite correct actions are irresponsible. When dealing with liberties we should be mindful that it is often important to say things that run contrary to the popular ethos of the day or to the Government's interest.
Mr. Hind : I am grateful to my hon. Friend for raising that point. Earlier in the debate, the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) correctly picked me up on a point concerning the receipt of a disclosure from someone who has been notified. Surely the person who is notified commits an offence by disclosing the information to a Member of Parliament and someone who is not notified is subject to the harm test. We have a responsibility to consider the matter very carefully--especially in respect of somebody who has been notified. We have to decide where the national interest lies. We have a heavy responsibility in that regard, and must be extremely careful. Channels are open to us--through the Home Secretary and the Prime Minister--to pursue these matters. That was the point that I sought to make.
Mr. Shepherd : At the bottom of each case is a question of judgment. Every citizen has a duty to try to exercise his judgment as best he can, with regard to the nation and the circumstances in which he lives. I respect that point.
I was arguing on the basis of the preface to Lord Griffiths's judgment, and saying that one might possibly conceive of circumstances in which it was necessary to alert the public to a danger. The Government have been consistent in their view that there can be no danger that cannot be remedied internally. They argue that the Bill can satisfy all the possible contingencies that every hon. Member--and Lord Griffiths--can imagine. The Bill is defective in that very assertion. In an important speech yesterday, the hon. Member for Caithness and Sunderland (Mr. Maclennan) talked about that assertion in relation to the European convention on human rights.
The Government are constructing legislation that will bring us before the European Court of Human Rights because it allows only for the internal review of possible grave injustices. The authority of the state alone-- unsupervised, and unchecked--may make unreviewable decisions on all these matters. I think that the Bill will fall before the European Court of Human Rights and I do not know many lawyers who think otherwise, although the Government seem to have their own special legal advice on these matters. It is important to caution them again and again about the dangers of not providing arrangements for the independent review of decisions that affect freedom of speech and our liberties in general. That is where the Government will come into conflict with the European court. Were the option left open to me--the Government have wilfully closed most avenues to us--I should find it extraordinary that they should take the view that there should be no last-chance mechanism by which one can remedy an iniquity or possible danger to fellow citizens of the kind to which Lord Griffiths referred in his judgment. Lord Griffiths's judgment is not the only judgment that we have had. I consider the Bill very much as the Baron Armstrong Bill. That gentleman has argued for most of the principles in the Bill in front of almost every court that he can find. In each court--in one court after another--the judge has overturned the central contention that there is an absolute lifelong duty, which cannot encompass the possibility that anyone else should ever have sight of a balanced reflection or an alternative view.
My right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour) has repeatedly reminded us of Mr. Justice Scott's observation--that this Government are demanding a degree of confidence that cannot be achieved this side of the iron curtain. Yet we sit here while the Government pass the Bill into law. It is a mistake, and it will be confounded by a court which, fortunately, can override the judicial decisions and view of the Government, and which is sited outside the realm.
The right hon. Member for Blaenau Gwent (Mr. Foot) referred to the Duncan Sandys case, and mentioned the function of the Committee of Privileges. The Times recently carried an important letter from a former colleague of ours, Mr. Christopher Price. Referring to the nature of privilege, he quoted a Privileges Committee report : "The privilege of freedom of speech enjoyed by Members of Parliament is in truth the privilege of their constituents. It is secured to Members not for their personal benefit but to enable them to discharge the functions of their office without
Column 519fear of prosecution, civil or criminal. The Commons, in their famous protestation of 1621, declared the privileges of Parliament to be the birthright and inheritance of the subject."
That is what the House of Commons is about. There is an assault on the very basis of our liberal democracy every time Government assert that only they may take a view of what constitutes national security.
A little later, we shall have a very important debate on the issue of prior publication. That, too, touches the very nature of our democracy. Judgments in the United States and Canada--and in our own history--have overturned many of the contentions in the Bill.
"This is why the drafters of the 1688 Bill of Rights separated the powers of the High Court of Justice from the High Court of Parliament so clearly ; it was also the basis for the acquittal of Clive Ponting by a British jury. They saw Ponting's action, like that of Duncan Sandys, as in the public interest and therefore incapable of being criminal."
Christopher Price's point is doubly valid.
Mr. Shepherd : I should have read the House that assertion because it is important to remind the Government that the course on which they have embarked serves neither the interests of the Government and the Conservative party, nor those of the House and the country. As there is unlikely to be a debate on clause stand part, I should add that I do not think that the amendment goes far enough. It is defective, because, as has been pointed out, there is a tremendous anomaly. My right hon. Friend the Home Secretary has advised us that one of the liberalising aspects--in fact, it is a dangerous aspect--of the Bill is that former and existing Security Service officers could be called to give evidence in court. A newspaper that cites its source could render itself liable to prosecution, albeit with some form of damage test. It is quite respectable for a newspaper to want to call its source to give aid to its defence. The Home Secretary accepts that there will not be Crown prosecution immunity certificates and tells us that that is one of the risks.
Clearly, the contention is that the Crown servant--the member of the Security Service--may give the information only to fellow Crown servants. That is the only way in which Crown servants can be relieved of their duty of confidentiality. What happens when the Crown servant is asked to give evidence in court? He has a conflict of duty, because he has the duty of a citizen to give evidence under oath but the Bill explicitly rules that out.
The law reform committee of the Law Society of Scotland says of this clause :
"This would permit a disclosure by a Crown servant or, in certain cases, another notified person as being with lawful authority if it was made in accordance with his official duty. We are concerned that this would still leave cases of conflicting duties where the position of the person concerned would be unresolved. If a Crown servant is giving evidence on oath, for example, and is asked in effect to disclose information covered by clause 1(1), he clearly has, in one sense, a duty to disclose, but this cannot be called his official duty as such. We do not comment as to which duty should prevail in such circumstances, but believe that a clear resolution should be provided by statute for such a conflict."
That seems to be a wholly respectable position to adopt.
Column 520While I do not think that the amendment is the most satisfactory way of remedying the anxieties that will clearly confront our constitution and, I believe, will render the value of this House, in the eyes of citizens, as being ever more marginal than they now perceive it to be, I commend it to my right hon. Friend as a way of helping the Government out of the impossible dilemma that they have provided for themselves.
Mr. Heffer : We may not agree entirely with everything that the Member for Aldridge-Brownhills (Mr. Shepherd) has said, but the Government should at least take a look at this amendment and perhaps bring forward a more suitable one covering the proposals that have been made today.
I should like to comment on one or two things that have been said about this matter. My right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) made the point that the Attorney-General would not be rushing to prosecute Members of the House of Commons--and he has great respect for the right hon. and learned Gentleman, as I have. What worries me is whether "Queen Margaret" or "Mother" would be in quite the same frame of mind. Would the Attorney-General make the decision? Would the Prime Minister be breathing down his neck? It is just conjecture, but I am not happy about the way the Government are going at the present time. I am not happy about the Prime Minister's actions.
The Attorney-General (Sir Patrick Mayhew) : I am grateful for the hon. Gentleman's kind compliment, but what he has just posited as a possibility is rather in conflict with it. May I assure him that every one of my predecessors in modern times has always brought to the question of prosecution a judicial mind and would have dismissed instantly any suggestion that he could be subjected to any pressure of the kind that the hon. Gentleman has just mentioned. In my experience this has been so clearly understood by all the Attorney's colleagues as really not to be worthy of sensible consideration at all.
Mr. Budgen : Of course, there is great conspiracy among Law Officers. They all scratch each other's backs and try to enhance the dignity and importance of their office. But, as the hon. Gentleman will recall, the first Labour Government were brought down as a result of a great row over the Campbell case. Even in recent times very disagreeable allegations were made against Mr. Sam Silkin in relation to his attitude towards the Clay Cross councillors. The back-scratching was not very effective at that time. So the idea that all Attorneys-General are persons of the utmost political virginity in all circumstances is simply not borne out by history.
Mr. Heffer : I do not disagree with the hon. Gentleman ; I am just making the point that I am not too happy with the way things in government are going at the moment. I just hope that the Attorney-General and the other Law Officers, as perhaps they should have done on past occasions, will stand up to the Prime Minister of the day and say quite clearly, "So far as we are concerned, there is
Column 521going to be no going down that path." That is the only point I am making. It is just a slight caveat in relation to the point made by my right hon. Friend. I was not actually disagreeing ; I just wondered what the position might be in the present situation. However, I am glad that this aspect of the matter has been brought out. I agree with the hon. Member for Lancashire, West (Mr. Hind) that a Member of Parliament obviously has to be responsible. We all get documents through the post, and people come to see us. If we are intelligent, responsible Members of Parliament, we look at those documents closely and decide whether they are important and whether they contain anything significant concerning the national interest. If we think that the sender is a nut-case, we put the documents in the fire or in the bin.
But from time to time somebody will come along with a significant document. As the hon. Member for Caithness and Sutherland (Mr. MacLennan) said, it may not be a civil servant, although I agree with my right hon. Friend that perhaps it would be. But it could be somebody else ; the clause makes the point that it does not have to be a civil servant. However, somebody had been notified and, to that extent, was responsible. Such a person might come to one with information, and one might well decide that it concerned a matter of the greatest national importance,.
I believe that a Member of Parliament should have that role. Who else? The suggestion that it should be a policeman is ludicrous. I do not know where the hon. Gentleman who made that suggestion lives. Will he go to his local police station and say, "I have this information. it is of the gravest importance, and I should like to speak to the chief constable"? He might get the reply, "I don't know about that."
Let us be serious about this matter. If something is of grave national importance surely the Member of Parliament has a responsibility to do something about it. I accept that there may be one or two Members of Parliament who wrongly use privilege in the House of Commons, but that is rare.