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(2A) A person does not commit an offence under this section in respect of information which before the time of the alleged offence had become available to the public or a section of the public whether in the United Kingdom or elsewhere.'.
It shall be a defence for a person charged with an offence under this Act to prove that before the time of the alleged offence the information was publicly known or published in the United Kingdom or elsewhere.'.
Sir Ian Gilmour : I move the amendment in a spirit of hope, but not in a spirit of great optimism in view of the nature of our proceedings so far in Committee. My right hon. Friend the Member for Chingford (Mr. Tebbit) got it seriously wrong in his speech on the guillotine motion on Monday. He said that the proceedings on the guillotine motion were purely ritualistic. He was wrong. The proceedings in this Committee are ritualistic. That is so partly because the Committee has been gagged by what I continue to think is a very iniquitous guillotine motion, but also because the occupants of the Government Front Bench are obviously unable to make any significant concessions. We are gagged and they are shackled. That makes the whole of our proceedings fairly pointless.
When my right hon. Friend the Leader of the House moved the guillotine motion he said that he thought that the Government had got their proposals right. Clearly he meant the word "right". However, I do not think that he meant the word "proposals", because they are not being treated as proposals. They are treated as something that is already law.
When my right hon. Friend the Home Secretary stated with his customary courtesy that the Government were asking Parliament to do this, he did not mean what he said. The Government are telling Parliament what is going to happen. Therefore, I am not moving the amendment with great optimism. However, the other amendments that have been moved so far in Committee were designed to help the subject and the press. My amendment is quite different. It is designed to help the Government, so I hope that it may enjoy a better fate than the other amendments.
The amendment is designed to stop the Government making fools of themselves. All Conservative Members and possibly some Opposition Members will be in favour of it because of that. However, are the Government in favour of the amendment? We will soon find out. As my hon. Friend the Minister of State will remember, there was a partial prior publication defence in the abortive Protection of Official Information Bill 1979. Why is there not one in this Bill? The only real reason must be that to include one would be an admission of error by the Government about what happened in the "Spycatcher" case. Clearly the prior publication defence was the nub of that case, and to include it in this Bill would be saying, "We got it wrong and we do not want to do so again." That is an understandable human reaction, but the "Spycatcher" case is a good reason for including a prior
Column 545publication defence because it would stop Governments ever again making quite such comprehensive fools of themselves. I shall return to the "Spycatcher" case later.
Another reason why the Government should accept the amendment is sheer common sense. I refer my hon. Friend the Minister of State to the title of the Bill--the Official Secrets Bill. If my hon. Friend the Minister considers carefully, I think he will agree that, once published, a secret is no longer a secret. It is like an egg--if I may use that word nowadays. Once an egg becomes a chicken it is no longer an egg. It is fairly clear that once something has been published there is absolutely no cause for the Government to become exercised about it.
Let us try to penetrate to some greater rationale for what the Government are doing. We can refer to the highest authority in this matter, namely my right hon. Friend the Home Secretary, who said on Second Reading :
"there may be circumstances in which the timing and placing of a fresh publication is bound to cause harm which earlier publication had not. A front-page spread in a daily newspaper, for example, on an item previously carried in a technical journal in another country might cause serious further harm."
My hon. Friend the Member for Thanet, South (Mr. Aitken) pointed out that that went against what Mr. Justice Caulfield had said in the Sunday Telegraph case. My right hon. Friend went on :
"It is a question of the harm done to the public interest. I should argue, on the ground of common sense, that it is perfectly possible to have partial, incomplete publication in a distant publication with no particular circulation and then to argue that to pick up that information, put it in a different form and splash it across the news, so causing major circulation would provide a further harm."-- [Official Report, 21 December 1988 ; Vol. 144, c. 464.]
My right hon. Friend seems to think that Russian intelligence officers do not read technical journals, confining their attention to the British tabloid press. That seems extremely unlikely. The idea seems to be that our intelligence interests will not be damaged by articles that appear in the technical press, but will be damaged if rather less information--a characteristic of tabloid newspapers--is spread on the front pages.
We are trying to safeguard this country's secrets. We are not trying to safeguard the Government's face, or the intelligence service's face. Once information has been noted and is in the public domain--I have no knowledge of Russian or other secret services, but I imagine that they comb technical journals extremely carefully--
Mr. Budgen : I have the misfortune to disagree with my right hon. Friend on this issue. Is he not assuming that all foreign powers who may wish to gain secrets from our state are immensely efficient, wealthy and well informed? I know that he has a high Tory view of human nature and takes the general view that we are all idle, slothful and incompetent, so it seems uncharacteristic for him to believe that every foreign power reads every newspaper. Surely the basis of the libel law, which covers publication in all sorts of spheres and at all sorts of levels, is a much more reliable guide.
Sir Ian Gilmour : I do not regard my hon. Friend as idle or incompetent, and he is probably not slothful. He certainly has not been slothful in the Committee, but has been on his customary good form. I think that he is saying that while it is all right for information to be given to the Russians and the Chinese--he probably thinks that they are fairly competent--we should cash in on the fact that
Column 546some extremely incompetent south American country may not yet know the information, and conceal it from the British people on the off chance that, for example, the Venezuelans may not know either. If he thought more about that proposition, he might not wish to stick to it. The idea that the British people should be kept in ignorance on the off chance that some petty principality or minor republic has not read a technical journal is not one that the House should entertain. The only conceivable, serious reason to vote against the amendment is to keep the British people in ignorance. For the sake of their amour propre or that of the intelligence service, the Government say that, although the Russians already know information because it has already been published in some American journal, it is important that it should not be known to the British people because they might object to it. Perhaps the Government might say to their allies, "You can see that it has not been published over here because we control our press better than you." I do not think that that is an emblem of skill.
Mr. Greg Knight (Derby, North) : Is my right hon. Friend saying that he believes that there will never be circumstances in which a second or subsequent disclosure would cause harm? That seems a risky proposition.
Sir Ian Gilmour : It does not seem risky to me. Such circumstances might exist, but there would be a greater risk in keeping the British people in ignorance while nearly all the rest of the world knew the information than in the one in a thousand chance that, once something is known to most of the world, further damage will be done by repeating it.
We have pretty high authority on prior publication because it was the basic issue in the "Spycatcher" case. Lord Bridge of Harwich, who is a high authority not only as a judge but as a former chairman of the Security Commission--we can hardly get better than him--said : "I can see nothing whatever, either in law or on the merits, to be said for the maintenance of a total ban on discussion in the press of this country of matters of undoubted public interest and concern which the rest of the world now knows all about and can discuss freely."
Lord Oliver of Aylmerton made the same point when he said : "To attempt, even temporarily, to create a sort of judicial cordon sanitaire against the infection from abroad of public comment and discussion is not only, as I believe, certain to be ineffective but involves taking the first steps upon a very perilous path." Those two quotations sum up the situation very well. I hope that my hon. Friend the Minister will break the habit, not of a lifetime, but of this Committee, and accept the amendment.
Mr. Robin Corbett (Birmingham, Erdington) : The right hon. Member for Chesham and Amersham (Sir. I. Gilmour) put the argument in a nutshell with blinding simplicity. Once a secret is known, it is no longer a secret- -it is as simple as that. This is a case where second thoughts are not best. Sometimes they are, but not in this case. In 1979, the Government's published Bill accepted a partial prior publication defence. In other words, once the horse has bolted, there is little point in locking the stable door. In 1989, the Government say in paragraph 62 of the White Paper :
Column 547"It seems to the Government that this rationale"--
that is, the argument in favour of prior publication--
It might have been more honest if the Home Secretary had said more plainly and honestly that the Government had changed their mind. There is nothing the matter with that, although I and other hon. Members may object to their new decision.
The White Paper, in defence of that, goes on to postulate an extraordinary situation. It says :
"in certain circumstances a second or subsequent disclosure may be more harmful. For example, a newspaper story about a certain matter may carry little weight in the absence of firm evidence of its validity."
We now come to the astonishing part. The White Paper says : "confirmation of that story by, say, a senior official of the relevant Government Department would be very much more damaging." Why on earth would even the deputy Prime Minister, Bernard Ingham, be authorised--as even he would have to be--to confirm such a story, touching as it would on vital interests of the United Kingdom? It is totally impossible to conceive of any circumstances in which any Government official would be authorised to make such a confirmatory statement. I do not believe that it would happen. In such circumstances, with information touching properly on our vital national interests, there is every good reason why such a story should not be commented on.
I can hear the Prime Minister now--either the present Prime Minister or my right hon. Friend the Member for Islwyn (Mr. Kinnock)--saying that it was not his or her practice to comment on matters of security and that they did not intend to do so. They would then sit down. However, the question remains. If a senior official is not authorised to confirm a story which, on first publication abroad, was known to be positively inaccurate, what possible harm can repetition do? I agree very much with the right hon. Member for Chesham and Amersham. The bottom line seems to be no more than saving the Government's face and avoiding embarrassment.
The Government would know whether the story published abroad was true or not. If they chose not to reveal which, as the Home Secretary outlined in the White Paper, an official would be authorised to confirm it. That can be put in the White Paper only to mock. The White Paper becomes positively bizarre when it says :
"Similarly, the publication of a list of addresses of persons in public life may capture the interest of terrorist groups much more readily than the same information scattered in disparate previous publications."
Perhaps the Minister will tell me whether it is the concept of a list that is at issue. Is it safe to publish a single name? The Home Secretary introduced the concept of that list. If a list is involved, how long is a list? The implication is that a list is longer than one particular name. How many names have to be on a list to justify the rejection of the prior publication defence?
Mr. Gerald Bermingham (St. Helens, South) : I have been thinking about the matter as my hon. Friend has been speaking. Do the Government seriously consider that documents such as "Who's Who" and the telephone directory are capable of becoming the bibles of the terrorist world?
Is the argument rejecting the prior publication defence concerned with the reprinting of a single specific name--and I shall give some examples in a moment--or with a group of specific names which is sensitive because of the jobs that the people concerned do? Let us consider an example. Suppose that The Baltimore Sun revealed that Mr. Colin McColl was the new head of MI6 and that The Guardian reported that in turn. What possible risk to Mr. McColl or MI6 can either the first or second publication cause? We have, after all, recently debated the Security Service Bill which admits, for the first time in statute, the existence of MI5 and MI6.
Quite properly, we know the name of the Chief Constable of Northern Ireland --although not yet the name of his successor--and it is published. We know the name of the General Officer Commanding in Northern Ireland, the name of the Secretary of State for Northern Ireland and the names of judges there. That seems to go against the Government's argument in the White Paper that, because of terrorists, it could be dangerous to publish some of those names. If that is so--and I understand the argument--I must ask the Home Secretary how many more sensitive jobs are carried out on behalf of this Government than the jobs of those senior people in Northern Ireland? If the Home Secretary seeks, through the Bill, to prevent the republication of the names of sensitive office holders, how have those names escaped clause 5? Either the Government are being carefully selective or, as I suspect, they want to be able to pick and choose under the Bill what shall be kept hidden from the British public, although it is known abroad.
Mr. Tony Marlow (Northampton, North) : Is there not another aspect? Some information is of value to the press, the media and in terms of writing books. If someone gets hold of information in this country which, if he published it, as the Bill now stands, would mean committing an offence, is that not a great incentive for him to rush off to some other country, publish it there and then come and stand before the media in this country and make a fortune?
Mr. Corbett : We are still left with the proposition of the right hon. Member for Chesham and Amersham, and we cannot get away from that. Once a secret is disclosed, it is no longer a secret. There could be an argument about damage--and I understand that--but by definition, such a secret is no longer a secret-- [Interruption.] Perhaps I could be allowed to make my own speech.
Mr. Corbett : No, I was saying that I understood the argument. I was trying to demonstrate the mess that the Government have got themselves into. I referrred to what is said in the White Paper about the publication of a list that could be useful for terrorist purposes, whereas the Government now do not seem to follow that practice with sensitive posts.
Column 549that, if harm is done, he is prepared to accept that? He must accept either my right hon. Friend's proposition or that one. Mr. Budgen rose --
Mr. Corbett : I am trying to demonstrate--perhaps I should have left this on one side--that what the Government seek to achieve in the Bill, in the context of the list quotation that I read from the White Paper, is something novel. It has never been done or attempted before.
Mr. Richard Shepherd rose --
Mr. Budgen rose --
We know the names of those who head the CIA and the FBI in the United States and they are listed in the Washington telephone book. Earlier this year, The Daily Telegraph published the name of the new head of the KGB. No action was taken. The Moscow correspondent of The Daily Telegraph rejoices in the name of Ian Smiley, which is most appropriate. He told us--and no harm has been done to relations between this country and the Soviet Union-- that the new boss of the KGB is General Vladimir Kryuchkov. Nothing has happened-- [Interruption.] Hold on ; I was just saying that nothing happened, so presumably we are allowed to know that.
It follows from what the Home Secretary argued in the White Paper that there are circumstances in which we would not be allowed to know about Mr. McColl being the head of MI6 or that last year the Prime Minister appointed Mr. Patrick Walker as head of MI5. Or perhaps it does not. The Home Secretary wants everyone to be certain of what risks they run, but the confusion remains.
On 4 January The Guardian published news of the appointment of Mr. Colin McColl as the head of MI6. On 23 January--in column 369 of Hansard --I asked the Attorney-General whether proceedings were to be instituted against Mr. Richard Norton-Taylor, the distinguished journalist on The Guardian and its editor, Mr. Peter Preston, for that publication. I got a one-word answer--"No." I take it that that matter is safe, but will such matters remain safe under the Bill? I assume that The Guardian picked the information up from the Washington Post.
Paragraph 14 of the White Paper properly refers o the need to ensure that no one is in any doubt as to the circumstances in which he would be liable to prosecution. The Home Secretary will know, of course, that there is immense uncertainty at the offices of The Guardian in Farringdon road as to whether it will be safe to publish such information in future.
Paragraph 63 of the White Paper says :
"in cases in which the prosecution would under the Government's proposals have to show that disclosure was likely to result in harm, the offence would not be made out if no further harm was likely to arise from a second disclosure."
[H on. Members :-- "What is harm?"] Let us get this straight. At the start of the process, the Secretary of State for Defence, I suppose, takes advice on whether that second
Column 550publication has caused further harm. I assume that if he concludes that it has not, and if he has that advice confirmed by the Attorney-General, there will be no prosecution. Or are the Government saying that the matter is to be decided, not by the Attorney- General, but by the courts and that it is for the courts to determine whether harm has been caused by a second or subsequent publication and that, to that extent, what is proposed in the clause is a system of automatic prosecution?
Mr. Corbett : The Home Secretary shakes his head, but I cannot believe that he is saying that he alone will decide whether or not a reprint has caused further harm. I cannot believe that even he will take that upon himself.
Mr. Hurd : I shall not be deciding anything. The whole point of the Bill is to remove such discretions from Government. As my right hon. and learned Friend the Attorney-General explained--and as is normal--it will be for the prosecuting authorities to judge in the ordinary way whether the second disclosure has caused harm. If they believe that it has, a prosecution may result. The prosecution would then have to show that the second disclosure had caused harm under the different tests of harm in the Bill. The defence could then argue that it had not--that the first disclosure did but that the second did not. The hon. Gentleman has totally failed to prove that there are no circumstances whatever in which a second disclosure could do harm.
Mr. Corbett : I am grateful to the Home Secretary for that explanation. So, in judging whether to prosecute, the test is not whether a little or a middling amount or a lot of harm has resulted but whether any harm has resulted.
Mr. Gorst : The matter is clearer even than my right hon. Friend the Home Secretary has made it. The first occasion when publication takes place and harm is done will be followed by the second occasion when harm may be done and it will be simply for the courts to decide which did the most harm. That must be perfectly clear.
My point is that, when a report is seen in an overseas publication, editors and journalists in this country will be incapable of properly assessing whether further harm may or may not be done when they are deciding whether to publish an allegation in the public interest. Let me give an example--
Mr. Budgen : Does not the hon. Gentleman start from a misunderstanding of what constitutes a secret? A secret is a relationship. If he and I have a piece of information in common, it may be a secret between us. It will not cease to be a secret merely because he tells a third party ; it will merely have been disclosed to another. My right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour) said that a secret is like an egg--that when one cracks it, it ceases to be a whole egg, but that is a false analogy.
Let me come back to my example. Suppose that the Washington Post ran a story saying that Britain had given secret undertakings to the United States Government not to use nuclear weapons based in Britain without the prior approval of the United States Government. Let us suppose that the report was based on an unauthorised leak by an official at the Ministry of Defence or the Washington embassy. Let us further suppose that a newspaper or television programme here wanted to run a story about it on the basis that it was a matter of public interest, whether true or not--I acknowledge that it would be of much more interest if it were true. For the sake of argument, let us suppose that it is not true and, improbably, that the Government put up a spokesman to deny the story. As I understand it, if the Government decide that even though the story is untrue and even though it has been published for the second time, it could still cause damage, those who published it here could be prosecuted. Now let us suppose that the story is true and that the Government deny it. Suppose that, as in the case posited by the right hon. Member for Old Bexley and Sidcup (Mr. Heath), there is a by-election pending and the disclosure is not convenient, so the Government deny that the information is true. That seems to suggest that prosecution could go ahead on the damage test. That must be so.
Under the Bill, no action can be taken if an unauthorised disclosure of our secret information is made by a foreign national abroad. But suppose that Sky television reported the hypothetical secret undertaking not to use nuclear weapons without prior American approval. What would happen then? The answer seems to be, "It depends." If the Sky satellite broadcast into x thousand British homes came as a report from the New York bureau, I think that no action could be taken, but if the Daily Express reported what it had heard on Sky television, the editor, Nick Lloyd, could be marched straight into Pentonville.
Let us suppose that Sky broadcast that report, not from its New York office but from London, up to the satellite and back down to the United Kingdom. In that case it would be caught, and so would the editor of any newspaper reporting that item. This is the stupidity of what the Government are proposing : the same information, the same disclosure, but the mere accident of a different office--one in New York, one in London--making all the difference between prosecution and no prosecution.
In fact, the position would be even more ludicrous, because x thousand people watching Sky television coming out of New York could quite properly have information, whereas millions not watching Sky would not be able to read about it in the Daily Express or see it on ITN later that night. The Home Secretary knows fine well--and this is another aspect of the ludicrousness of the situation--what Sky will do in those circumstances. Where is it going to broadcast that information from? London or New York? The Home Secretary knows fine well that Sky will ensure that such information always comes from New York so that the long arm of the Government cannot reach it.
Column 552There is something else that I hope the Home Secretary will be able to tell us about. I do not know whether this is a case of second publication, but it is close to it. What about all the imported world-class newspapers that come into Britain-- Le Figaro , Le Monde , La Stampa , International Herald Tribune ? They carry information which, under this Bill, it would be an offence to carry. Some of these publications even come in via one of these new-fangled mangles. What happens in those circumstances? Somebody idly buys La Stampa in a tobacconist's shop in Soho because he happens to enjoy reading that paper. Apparently he is all right, but if a British journalist from the Daily Mail or The Daily Telegraph picks up a copy of La Stampa and says, "Oh, that is an interesting story ; I will offer it to my editor," the newspaper will not be able to publish it because that would be genuine republication.
Does the Home Secretary want to say something?
Mr. Hurd indicated dissent.
This is a very serious matter for editors and journalists, and an extremely serious matter for the British people in regard to their right to access to proper information. How on earth are editors and journalists expected to assess the potential harm surrounding a story published elsewhere earlier, upon which no Government official has commented? I will give the Home Secretary the answer to that question. The Guild of British Newspaper Editors put it very succinctly when it said, "This is an impossible task." Unless the Government change their mind about this, it will inhibit publication of information not desperately vital to our national security, information which, in other circumstances, those newspapers might well have published.
Earlier in the debate, we reached the heights of farce when the Government argued that it might be all right to publish some of this information in a small magazine with limited circulation but not in the Daily Mail . Presumably the argument is that, because of cash limits in the Kremlin, there are restrictions on its ability to take out magazines. That was said earlier in this debate--or something very close to that. Are the Government still going to use that argument? Is the accident of circulation going to be among the measures of damage or potential damage? I say "accident" because, clearly, only a limited number of people are interested in aeroplanes, for example, and subscribe to Flight , against the millions who buy the Daily Mail . So I ask the Home Secretary yet again where in this is the certainty for editors and journalists.
The Government have not made out their case for changing their view of 10 years ago. They would lose nothing by changing their mind back and, perhaps, getting a little much-needed respect over this Bill. They would not lose anything, because the much-loved damage test would remain in the Bill even though the prior publication defence was admissible. I hope that, when the right hon. Gentleman has listened to the debate on this all-party amendment, he will come to the conclusion that the words used in 1979 were right and that those in this Bill are wrong.
Mr. Tony Baldry (Banbury) : The speech we have just heard was very revealing. We are now on the fourth day of the Committee stage, having had a Second Reading, yet even now it is quite clear that hon. Members on the
Column 553Opposition Front Bench have completely failed to master the Bill. Even at this stage the hon. Member for Birmingham, Erdington (Mr. Corbett) says that the Home Secretary will make the decision about prosecution. He has not grasped that, under clause 9, prosecution decisions will be a matter for the Attorney-General.
It is quite clear also--and I will expand on this in a second--that the hon. Gentleman and his hon. Friends have not grasped the provisions of clause 6(3). Perhaps the reason the hon. Gentleman was so keen to rush through his speech that he realised at last that he really had not grasped what the Bill was about. Or perhaps it was the realisation that there are now only five other Labour Members in the Chamber, despite his party's much -vaunted complaints about the guillotine.
I wish to make three points. First, my right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour) was absolutely right in saying that this is an Official--official--Secrets Bill. It is concerned with official information--official British information--and information that is not official falls, by definition, outside its parameters. Therefore it is quite untrue that this legislation would in any way prevent the publication, in this country, of information made publicly available by the Government of any other country. So, to start off, we are dealing with a limited amount of information ; it is information that is official to this country.
We should also note that clause 6(3) explicitly states that no offence is committed, even if official information provided by us to another state, and then made available by that state under its own laws, is published. Under the Bill that is not an offence. Let me put it in simple terms : if the British Government make available to the American Government information that is then published under that country's freedom of information legislation, further publication of that information is not, and cannot be, an offence under clause 6(3).
Secondly, even when we are dealing with official information, in those categories of information where the harm test applies, the defendant can, of course, argue that the fact of any prior publication meant that damage had been caused by the first disclosure and that any subsequent publication of the information did not cause the harm specified in the Bill. That defence--the harm test--is already available to the defendant. It would be for the prosecution to prove damage, and it would be for the jury to decide.
Thirdly, having regard to the fact that we are dealing with official information and that the defence of the harm test exists already, it would be wrong in principle and in practice to have an absolute offence of prior publication. My right hon. Friend and those who support his amendment are saying that there should be an absolute defence of prior publication, that once the information is seen anywhere, that is a total defence.
Mr. Aitken : As my hon. Friend is learned in the law, I wonder if he could clarify one point in his argument in regard to the harm test. As I understand the Bill, the harm test does not apply to what might usually be called the absolute offences--those in the categories in clause 1, and some of those in clause 4 to do with interception, communication, and so on. If I am right about that, what is the relevance of the harm test? Surely it does not apply if an absolute offence has been created.
Mr. Baldry : My hon. Friend answers his own question. It has been made clear throughout the proceedings on the Bill, from Second Reading onwards, that there are certain provisions to which the harm test does not apply.
Mr. Hurd : If my hon. Friend the Member for Thanet, South (Mr. Aitken) reads clause 5(3) he will see that there is indeed a damage or a harm test for all offences in clauses 1 to 3. We are not talking now about what the former member of the intelligence or Security Service has done ; we are talking about the actual disclosure. 8 pm
Mr. Baldry : The thrust of the point is that the harm test applies to most of the Bill. The vast majority of Government information has been taken out of the parameters of the Bill. We went through all that on Second Reading. The harm test applies to most of the information referred to in the Bill and a defendant could pray that in aid. Even where the harm test does not apply--where there is an absolute offence under clause 1--my hon. Friend the Member for Thanet, South (Mr. Aitken) should take into account clause 5(3), as my right hon. Friend said.
The absolute defence of prior publication does not exist in the law at the moment. It has never existed in the law of this land. If a defendant says, "No harm has been done by my revelation, because the harm was already done," that deals with cases such as "Spycatcher" which my right hon. Friend the Member for Chesham and Amersham sought to ridicule. A defendant could pray that in aid before a jury. As my hon. Friend the Member for Derby, North (Mr. Knight) said, to argue for such a general defence one must assume that there could be no circumstances in which a second or subsequent disclosure could cause harm.
My right hon. Friend the Member for Chesham and Amersham and other hon. Members who support the amendment might be so cavalier as to take that risk, but I--