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Mr. Foot : I hope that the Home Secretary will consider the points raised by my hon. Friend the Member for Birmingham, Perry Barr (Mr. Rooker), which relate to additional matters that Parliament should carefully consider. Since the Sandys case, the way in which the Select Committee on Privileges operates has been altered in a way that I thought provided for greater protection and should make the Government more willing to follow the course that some right hon. and hon. Members advocate. As matters stand, a right hon. or hon. Member cannot just raise a matter of privilege on the Floor of the House, but must first take the matter up with Mr. Speaker. So some further protection is given there.
From what the Home Secretary says, it appears that no alterations will be made to the operation of the Official Secrets Act 1911 as it applies to Members of Parliament. The right hon. Gentleman gave reasons why he does not believe that there should be such an alteration. If that is the case, we are back to the Duncan Sandys position. The report of the Committee of Privileges on that case did not mark the end of the matter in the minds of those people who felt that they had suffered under the Official Secrets Act 1911--the Churchillites, the Duncan Sandysites and the rest. They still felt that the report of the Committee of Privileges was insufficient to deal with the situation, and that the legislation should be amended. That is what Churchill wrote about, and I have referred to that matter on two or three occasions. I invite the Home Secretary to read the words that Churchill wrote on that subject.
Thirty years later, when we propose making an alteration after all those years, the Home Secretary still says, "There is no real change to that aspect," for the reasons he gave. I am not arguing that amendment No. 74 is wholly satisfactory. I believe that the change required could be effected in a different way. But I also believe that, after all those years, after all the arguments and protests that have been made, and given the opportunity we have to devise a new secrets Act that will govern our country's affairs for many years to come, the Government should be
Column 533prepared to table an amendment that will guarantee to Members of Parliament, and to any person approaching a Member of Parliament, better protection than there has been in the past--and better protection than there will be if the Bill is allowed to go forward unamended.
As to the Scottish point and the disclosure of protected information in legal proceedings, the categories of protected information specified in clauses 1, 2 and 3 have a common feature : they all apply to a Crown servant who
"makes a damaging disclosure of any information which is or has been in his possession by virtue of his position as such." In other words, it will have been by virtue of his position that he came by the information in question. What will happen if that individual is called upon to divulge that information in court? He may say, "I do not believe that I ought to disclose that information." What will happen if he is pressed?
As my right hon. Friend the Home Secretary said, if he is giving evidence for the prosecution--and it will virtually always be in those circumstances --the prosecution can say that, if he does not wish to give evidence and the court is not prepared to give an order, the proceedings will have to be withdrawn if the matter is crucial. But that seems to be so far-fetched as to be unlikely to occur. If matters had got to that stage, the prosecution would have considered it beforehand.
If, on the other hand, the court orders that person to give evidence, he is surely giving evidence in accordance with his national duty, which is the formula found in clause 7, which sets out the circumstances in which disclosure for the purposes of this Bill is made with lawful authority. Of course, it is made then, I suggest, in accordance with his official duty because, if he is a civil servant, it must be in accordance with his official duty that he should comply with an order of a court made in connection with any information that has come to him by reason of his official position. I believe that that is all that need be said to allay Scottish and other anxieties on this point.
I will give way to the temptation to answer one point made by the right hon. Member for Blaenau Gwent (Mr. Foot). He says that no change has been made by this Bill in the position of Members of Parliament vis-a-vis the Official Secrets Act 1911. I suggest that a very important change has been made : no longer will they be guilty of an offence of receiving protected information.
Mr. Hattersley : The Home Secretary having given the Committee his views on the amendment, perhaps I can briefly do the same. I do not dismiss in any way the central point that the Home Secretary made. He was either too polite or too pusillanimous to put it in the crude terms that I shall employ, but, as I understand his case, his problem was that, if this amendment is carried, a member of the security services who provides information to a Member of Parliament does so with impunity. Then the Member of Parliament, acting properly in one sense under the rule of privilege, makes that information public in the House of
Column 534Commons and is not prosecuted for doing so. We do not have to describe the situation which is the Home Secretary's fear to realise that there is a problem at least of a theoretical sort. But I cannot conceive of a Member of Parliament's making public the sort of information which the Home Secretary fears, or ought to fear, might be made public.
Let me explain what I mean by that. It is not based on any over-elaborate or over-romantic view of Members of Parliament ; any such views as I might have had 25 years ago have been dispelled over the past quarter of a century. But I cannot imagine a Member of Parliament, say, being told the name and address of an agent in place and revealing that in the House of Commons. What a Member of Parliament might reveal in the House of Commons is information which is damaging not to the interest of the state but to the interest of the Government. Again, we come back to the nub of the question when we think about the sort of revelation that the Home Secretary fears. The Ponting case has been an example in much of our debate. We have been told throughout the debate by the Home Secretary and others that for the aggrieved public servant there are proper channels of communication. I do not think that, despite the reference to this proviso, anyone was suggesting that Mr. Ponting would have been better advised to describe the situation to a policeman. Nor, since Mr. Ponting was correcting the international errors spread by the Ministry of Defence, could it have been in Mr. Ponting's best interests to report the matter to the Secretary of State for Defence. It is in that sort of situation, where the public service officer, the public servant, believes that he must report to a Member of Parliament, not because it is his wish to undermine the interest of the state but because he believes that the Government have acted improperly, that we believe that the revelation ought to be made to a Member of Parliament.
If the Government vote against this amendment, or at least if they vote against it without promising to put something technically more accomplished in its place, they are, in my judgment, ending what I would describe as the Winston Churchill situation before the second world war. It is a long time since I read Martin Gilbert, but the information that was supplied to Mr. Churchill and that he used with such success to end the days of appeasement and the pretence that we were prepared and were preparing was almost always supplied to him by men who, under the present Bill, would be classified under clause 1 or notified that they were in the special category requiring them to maintain confidentiality on all occasions. We are preventing that from ever happening again, or we are attempting to.
I make two points to qualify my own assertion. I think, as does the hon. Member for Caithness and Sutherland (Mr. Maclennan), that in similar circumstances patriots would take the risk and still pass on the information. But we ought to be clear that, if this amendment is carried, we are legislating against the patriot doing what he thinks is his patriotic duty.
It may well be that the amendment is technically deficient in a number of ways. There is the point raised by my hon. Friend the Member for Birmingham, Perry Barr (Mr. Rooker) about whether it refers just to the House of Commons or to both Houses. I think that it refers to both, but I shall not be so rash as to express my view concerning whether it should refer to our House alone or to the other
Column 535place as well. If this is a proper Committee stage--we still have the vestiges of a proper Committee stage, despite the guillotine--it is not enough for the Home Secretary to rest on the technicalities. If he believes, as we do, that it is right in the circumstances I have tried to describe for a public servant to be able to communicate information to a Member of Parliament, his clear duty is to promise a better amendment. Unless he does so, I hope that my right hon. and hon. Friends will vote for the amendment.
Mr. Maclennan : I listened carefully to what was clearly a very careful speech from the Home Secretary and I found it internally somewhat contradictory. He started by saying that this was a very modest amendment and ended by saying that it would not be understood by my constituents or his.
Mr. Hurd : The hon. Gentleman is taking a little advantage of my generosity. I was answering not only his amendment, which is a modest one, but the much more ambitious propositions of my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), which would encompass members of the intelligence and security forces, which of course his amendment does not.
Mr. Maclennan : I am grateful for that clarification, but it does not altogether dispose of the right hon. Gentleman's description of my amendment as one that would not be understood by our constituents. I believe that the opposite is the case : our constituents would find it utterly extraordinary if they thought that, if they came into possession of information of considerable significance, they could not, under the Bill, properly communicate it to the Member of Parliament.
The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) spoke of its being not very likely that my crofting constituents would reveal this sort of information. I have to tell him that there have been in my experience in the last 10 years two such cases. The right hon. Member for Chesham and Amersham (Sir I. Gilmour) could testify to one of them because he was the Lord Privy Seal to whom I spoke at the time about the incident. I will tell the Home Secretary about these circumstances because they show the reality of the point with which we are dealing and illustrate the fact that this is not a theoretical problem.
I have in my constituency a nuclear research establishment at which plutonium is handled on site. It is a substance of great significance in defence and it seems to me that it is quite possible that, under the provision of this Bill dealing with defence--that is, clause 2(4), which speaks of the weapons, stores or other equipment and the production and operation of such equipment--the plutonium on site and the manner of the handling of it could conceivably be covered by this Bill.
A constituent of mine who was not a Crown servant or an employee on the site came to me and said that he had very important information to give me about the manner in which the plutonium was handled. He said that he had obtained the information from someone in the know and who worked on the site and that he wanted me to do something about it because it concerned an important question. If the Home Secretary is suggesting that the constituent would have been more sensible to take that
Column 536information to the village police constable rather than to me, as the Bill provides, then he is making a preposterous suggestion. Let me give the right hon. Gentleman the other example that springs to my recollection. There was in my constituency an outstation of GCHQ, situated at Brora in Sutherland. In the early part of this decade it employed quite a large number of people in terms of the locality. Those who were employed there had always been entirely discreet about its operations. During the early 1980s, a constituent of mine who was not employed there came to me and said, "I believe that a decision will be taken to close this outstation of GCHQ. Of course that will have serious employment consequences in the community, but I would not come to you about that. I have come to you because I have been told that this is a grave error in the interests of the nation ; this outstation of GCHQ is an essential part of our defensive network, and we cannot be properly looked after without it." He was not an employee. It was, perhaps, tittle-tattle. But he gave me to understand that he had been given chapter and verse.
Mr. Maclennan : In the terms of the clause we are discussing, he had had disclosed to him very serious information from a Government contractor. If the Minister is suggesting that that worried constituent would have been satisfied by going to the local police constable with this information, then he is quite out of touch with reality. My constituent's response would almost certainly have been to go to the Scottish Sunday Post with the information, knowing that it would be broadcast very widely. In fact, my constituent came to me and I went to see the right hon. Member for Chesham and Amersham and the whole matter was properly discussed. My constituent's anxieties were alleviated to some extent.
I give these anecdotes to show the Home Secretary what he does not seem to have appreciated--that these are not purely abstract matters, and that anyone who has been a Member of Parliament for as long as me has to deal with such matters from time to time. The Home Secretary has tried to reassure us that the Bill does not cut down a Member of Parliament's remedies if he should come into contact with such information. That may be so, but the Bill seems to cut down the remedies available to members of the public. That is worrying. Section 7(3) allows for disclosure of information only in a particular way. Both of my examples are in the categories covered by the Bill, which are of disclosures to be made to a police constable or a Crown servant. That cannot be right ; it simply does not make sense. The police constable is quite likely to make the wrong use of the information. Indeed, he might fail to satisfy the member of the public who is concerned about the issue that his concern is being properly dealt with. Perhaps the Home Secretary has greater faith that his constituents would be reassured by police constables in west Oxfordshire than I have that mine would be in Caithness and Sutherland. I am bound to say that this is not the appropriate way to proceed.
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The right hon. Member for Sparkbrook was quite right in saying that the amendment is not primarily about protecting Members of Parliament ; it is about protecting the public. It may well be, despite this unsatisfactory clause, that the public will continue to communicate with their Members of Parliament as they think fit. Parliamentary privilege may well protect them, but I am not wholly convinced by the Home Secretary that the Bill does not cut down the scope of the privilege of a Member of Parliament.
The Bill is specific about the matter. Clause 7(3) describes disclosure by any person other than a Crown servant or Government contractor as a disclosure that cannot be made with lawful authority. Perhaps I should repeat that crucial point for clarification. The disclosure is not made with lawful authority if it is made to anyone other than a Crown servant or in accordance with an official authorisation. At its face value, that means that a disclosure is not made to a Member of Parliament with lawful authority, and that acts as a barrier to members of the public, and cuts down the capacity of a Member of Parliament to do his job properly.
I heard the Home Secretary quote from the Committee of Privileges and the Duncan Sandys case about proceedings relating to the Official Secrets Act. I tried to note the words, as I have not read them recently. They suggest that Members of Parliament should not be made subject to proceedings under the Official Secrets Act for disclosures of this kind. I was not entirely sure whether the Home Secretary was saying that that is still the case and the Bill does not affect that position. If he was saying that, he has gone some way to reassuring me about my main concern, which led me to table the amendment, but that is only an assertion, and it is not embodied in statute. It would certainly be much more satisfactory on a matter of such importance to have statutory clarity.
I wholly understand the Home Secretary's concerns about the possible abuse of position by a Member of Parliament, but we are concerned about balancing risks in such cases. The suggestion that Members of Parliament would be more likely to take the wrong decision than Crown servants or members of the public who are denied access by the law to their Members of Parliament is not capable of being sustained. The balance must be in favour of Members of Parliament exercising their judgment responsibly and with careful deliberation in the interests of the country. I hope that the Home Secretary will reconsider this question before the Bill receives Royal Assent.
Mr. Winnick : The only Back-Bench Member who has so far defended the Government's position is the hon. Member for Lancashire, West (Mr. Hind). I shall not criticise him in any way, because he is rather a brave soul. Whether he feels that that is a quick way of getting into the Government, I would not know. However, I congratulate him on expressing what, after all, has been a minority viewpoint in the debate. We know that at 7.15 the troops will be out and the Government will get their way as usual, but in the meantime the minority view has been put by at least one hon. Member. I heard rumours, and I did hope, that the Leader of the House would speak during the debate on a matter which involves parliamentary privilege. I do not know whether the right hon. Gentleman is listening. I can well
Column 538understand his reluctance to speak, but at least he has been present. As you may know, Miss Boothroyd, when the Prime Minister was asked at Question Time today about the number of Cabinet Ministers who have been dismissed, she simply replied that none had been dismissed ; they had resigned. Since the right hon. Gentleman is widely rumoured to be in the firing line, I can well understand his reluctance to speak.
Mr. Winnick : In the last resort, it is the right of a private citizen or an official to go to his Member of Parliament. The Home Secretary's argument all along has, in effect, been that, if a person has reason to feel that an abuse has taken place, there are procedures available to him. Clause 7 refers to disclosures from a Crown servant. We know that the Home Secretary has put a great deal of emphasis on the fact that, if someone in the security services feels aggrieved, he can go to the person widely referred to as the ombudsman in the Security Service.
Mr. Winnick : Yes. But what worries me, as I am sure it worries a number of other hon. Members, is that, if an official or a private person feels that going to a Crown servant, whether that be the village constable or a much more senior person in officialdom, will not resolve the matter, or, having used those procedures, he does not feel that the matter has been put right, there is no other course left. Surely, at the end of the day, such a person has the right of any other British citizen to go to his or her Member of Parliament. The amendment may be technically defective in a number of ways, but that is not relevant. If the principle of an amendment is accepted, the Home Secretary should say so and table another amendment on Report. It is worrying that once again the Home Secretary has completely closed that door.
I remain convinced that there may be cases--I am sure that they would not be frequent--where at the end of the day, as in the Duncan Sandys or Winston Churchill cases, a Member of Parliament should be seen. Hon. Members know from their postbags that people have more mundane problems and difficulties than the sort that we are debating. Often they have tried to resolve them through the usual channels, but at the end of the day they go to their Member of Parliament. They do not say to themselves that their Member of Parliament has nothing to do with housing or health problems. They believe that their Member of Parliament is there to look after their interests. About 70 or 80 per cent. of our constituency postbags relates to matters which are no concern to us, but obviously we take up those matters because we are expected to do so. The same applies in the event of abuse.
Mr. Hind : Does the hon. Gentleman agree that his constituent can still come to him and make a disclosure, providing that he has not been notified, and the hon. Gentleman can take up the matter? Providing that he does so in such a way that he does no harm to the national interest, he protects the fact that the disclosure has been made to him and he seeks out a remedy. On top of that, the
Column 539has the privilege of the House should he feel that he needs to take the matter further. Should the matter then go to court, his consitituent can argue the defence in the courts.
Mr. Winnick : But the person who has made the complaint is not protected. A Member of Parliament would do his duty. Regardless of what is in the Bill, if I received a complaint I would not rush to the Home Secretary if I did not consider that to be appropriate. Obviously, if it were appropriate, I would go to the Government, but otherwise I would pursue the matter on the Floor of the House. I do not wish to engage in any form of abuse, but after consulting senior colleagues I would do what I considered to be my duty. I trust that all hon. Members would do precisely that. The person who makes the complaint should not be in the position in which the Bill places him. The principle of the amendment should be accepted.
Let me conclude with a case that I have brought up before which concerns an official, not a private citizen--that of Cathy Massiter. It arose before there was a staff counsellor. The staff counsellor was appointed following what happened over Cathy Massiter. Whatever else one may say about her disclosures, they have undoubtedly led to some changes for the security services.
If Miss Massiter had gone to a staff counsellor and had not received satisfaction, as presumably would have happened, and she had then gone to someone higher and at the end of the day the abuse about which she was complaining had continued, she may have gone to her Member of Parliament. Such a course would have been perfectly right. However, the Bill in no way protects a complainant such as Cathy Massiter.
The Attorney-General indicated assent .
Mr. Winnick : It is unfortunate that once again the Home Secretary is not willing to accept the broad principle of the amendment. I do not accept that Members of Parliament abuse privilege. I have been here for less time than many other hon. Members, but I can recall few, if any, cases of abuse. We all know that the House has a way of dealing with abuse by taking such matters to the Committee of Privileges, as happens if a Member seeks to use the House for publicity purposes.
For all those reasons, the principle of the amendment should be accepted, although I am not at all surprised that the Home Secretary has again refused to accept it.
Mr. Hurd : Let me briefly answer some of the later points. I am not clear why the hon. Member for Caithness and Sutherland (Mr. Maclennan) thinks that either of his constituents might be prosecuted under the Bill. He will judge that better, but if he is wrong, the problem that he described will not arise. The Bill does not reduce his or her constituents' rights in this matter.
My hon. Friend the Member for Hendon, North (Mr. Gorst) pressed me on a point that I did not cover when I spoke earlier. I can say what I think he wants me to say, because it is true. There is no change in the press reporting of our proceedings. It will still be governed by qualified
Column 540privilege--a concept that has been thrashed out over the years. That means, of course, that if an hon. Member disclosed in the course of proceedings in the House a piece of information passed to him by a member of the security or intelligence services, it would be out-- not just in the House, but on the news stands and in the television studios.
I tried to follow the point of my hon. Friend the Member for Hendon, North about the receiving of anonymous information. He is right to say that there could be a problem, but I do not believe that it is one that would be affected by the Bill.
The suggestions by the hon. Member for Birmingham, Perry Barr (Mr. Rooker) are matters for the House. I am not sure what the Clerk or the Chairman of the Select Committee would do when he received the piece of paper which the hon. Gentleman postulated. The House would need to think long and deep before going down that path.
The point of the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) appeared to lack his usual logic. It is true that in some cases an hon. Member might not disclose what he had received, but that is not an argument in favour of an amendment which would enable every constituent to communicate, and therefore every hon. Member to disclose, any secrets which came into his hands. That would not be logical. The hon. Member for Caithness and Sutherland is right in saying that it is a matter of balance.
We have had a leisurely debate, with between 20 and 25 right hon. and hon. Members present for most of the time, with the usual--but rather reduced-- gifted group of convinced critics of the Bill on both sides of the House. Those right hon. and hon. Members have not attracted the support which they obviously hoped for-- [Interruption.] They have not persuaded me. It is not necessary to persuade a Minister, but a Minister can actually be made to do something. That means, however, attracting wider support than has been the case on this occasion. That does happen, but, of course, it has not happened on this occasion. That may be because the amendments
tabled--especially this one--lack the sort of balance which I believe is better expressed in the Bill.
Mr. Norman Buchan (Paisley, South) : How many hon. Members who voted with the right hon. Gentleman throughout the proceedings on this Bill does he really think believe in this Bill? There is no answer.
Mr. Hurd : There is no change in the Bill with regard to whatever privileges there are for Members of the European Parliament. In reply to a question from the hon. Member for Perry Barr last night, I promised to look into the subject of the European Parliament, official secrets and the clause which we discussed last night. I shall need a little time to investigate that point further.
Mr. Maclennan : I thank the Home Secretary for his remarks, which were, of course, unpersuasive. I shall simply comment on what the right hon. Gentleman said about the interest of the House in this matter.
The right hon. Gentleman signalled at an early stage in our proceedings that the Bill would not be amended by the Committee, except in one respect by a Government
Column 541amendment. He indicated that he had no intention of accepting any amendments tabled by right hon. or hon. Members on either side of the Committee, however eloquent or forceful their arguments were. It is not surprising, therefore, that many right hon. and hon. Members regard the proceedings through which he has been putting us as something of a charade. The reality is that we are not shaping the legislation in any meaningful sense. The Bill will leave the House as it entered it.
The right hon. Gentleman has participated in a procedure which, I believe, has brought the legislative process into disrepute. None the less, I regard this as an important matter, and I hope that right hon. and hon. Members in all parts of the House, while recognising the technical deficiencies of the drafting, will support the principle.
Question put, That the amendment be made :--
The Committee divided : Ayes 112, Noes 274.
Division No. 98] [7.4 pm
Ashdown, Rt Hon Paddy
Banks, Tony (Newham NW)
Barnes, Harry (Derbyshire NE)
Beith, A. J.
Benn, Rt Hon Tony
Bray, Dr Jeremy
Brown, Gordon (D'mline E)
Brown, Ron (Edinburgh Leith)
Buckley, George J.
Campbell, Menzies (Fife NE)
Campbell, Ron (Blyth Valley)
Campbell-Savours, D. N.
Clarke, Tom (Monklands W)
Clwyd, Mrs Ann
Cook, Robin (Livingston)
Davies, Rt Hon Denzil (Llanelli)
Davis, Terry (B'ham Hodge H'l)
Duffy, A. E. P.
Dunwoody, Hon Mrs Gwyneth
Field, Frank (Birkenhead)
Foot, Rt Hon Michael
Godman, Dr Norman A.
Golding, Mrs Llin
Hattersley, Rt Hon Roy
Heffer, Eric S.
Hughes, John (Coventry NE)
Jones, Ieuan (Ynys Mo n)
Kaufman, Rt Hon Gerald
Lestor, Joan (Eccles)
McKay, Allen (Barnsley West)
Marek, Dr John
Michie, Bill (Sheffield Heeley)
Michie, Mrs Ray (Arg'l & Bute)
Owen, Rt Hon Dr David
Pike, Peter L.
Powell, Ray (Ogmore)
Shepherd, Richard (Aldridge)
Smith, Andrew (Oxford E)
Smith, C. (Isl'ton & F'bury)
Steel, Rt Hon David
Taylor, Mrs Ann (Dewsbury)
Welsh, Andrew (Angus E)