House of Commons Hansard Debates for 16 Feb 1989

Mr. Richard Shepherd : I should be grateful if my hon. Friend would give an example of the risk. Information that we give in confidence to foreign Governments may be leaked abroad by being published, for example, in Corriere della Sera. That point has been explored before. Therefore, the information is widely disseminated. Our courts have dealt with that. What example has my hon. Friend in mind of subsequent revelation which will cause as much harm as the original disclosure?

Mr. Baldry : My hon. Friend seeks to assert that there are no circumstances in which a subsequent or second disclosure could cause harm. I, and, I suspect, the vast majority of hon. Members, are not prepared to take that risk. It is an unnecessary risk, given the provisions of the Bill.

Mr. Whitney : May I offer to my hon. Friend the Member for Aldridge- Brownhills (Mr. Shepherd) an example? We now know about Chevaline. The secret of Chevaline was kept from the British public and from the British Parliament by a small group in the Labour Cabinet. They kept it from the rest of the country because they did not wish the main part of the Labour party to know about it. There can be little doubt that the Soviet intelligence services knew about the decision on Chevaline. It would have been possible for the Soviet security services to leak that in a remote newspaper, and the information

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would then have been picked up by a British newspaper. The effect would have been that the Labour Government would have turned tail and cancelled Chevaline, and that would have damaged British defence interests.

Mr. Baldry : I am grateful to my hon. Friend. I do not think that those who support the Bill need to give examples. The burden of proof is on those who so cavalierly take the attitude that it is possible to take the risk of subsequent or further disclosure.

Mr. Richard Shepherd : There is no risk.

Mr. Baldry : My hon. Friend says that there is no risk. He must stand by that. Given the protection within the context of the legislation-- the Attorney having to agree a prosecution, the defence of the harm test, the limited amount of information which is covered, and the fact that it has to be official information--there is no need for the nation to take the risk of subsequent disclosure causing harm. If those who support the amendment wish to be so cavalier, that is up to them, but I suspect that, when the Committee has to vote, it will decide that there is no need to be so cavalier with official information.

We have a fine balance in the Bill between the interests of a community and the proper rights of the citizen within it. The reason why those who support the amendment seek to create examples is that, throughout all the proceedings on the Bill, they have sought to put up artificial coconut shies so that they can try to knock them down. They have to look the people in the eye and say, "We are prepared to take a risk that there could never, in any circumstances, be a situation where the subsequent disclosure of official information could cause harm, and we are prepared to offer any defendant an absolute defence in all circumstances." That defence would be that, the information having been published elsewhere, the defendant could say, "There can be no prosecution in those circumstances because I could not have done any harm." I do not think that the Committee should be led down that lane.

Ms. Diane Abbott (Hackney, North and Stoke Newington) : We have had occasion over the past few days to contemplate the dangers of fundamentalist religion. I am obliged to contemplate the dangers of fundamentalist Government Back Benchers who claim that they have no need to prove their case. One does not need to be an expert on the security services or even on the affairs of the Home Office to know that, once a secret is revealed, it can no longer be a secret. When asked to demonstrate their case by giving examples, even the most loyal of Government Back Benchers were floundering.

It is common sense that a secret, once revealed, is no longer a secret. Therefore, why are the Government trying to push the defence of no prior publication? However much the Government may wriggle, and whatever byzantine examples they build, if we are to imagine circumstances in which a second publication causes harm when first publication did not, we have to imagine massed ranks of spies, enemy agents, criminals and journalists who are asleep, illiterate or drunk, or who are generally falling down on their duty.

I must speculate on why the Government are trying in the clause to promote a proposition which is patently

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absurd. I can come up with only two reasons. One hates to go over painful history, but the first reason relates to the "Spycatcher" case, where the Government's case was largely smashed by the defence being able to demonstrate, by much painstaking work, that virtually everything in the disputed book had been published elsewhere by Mr. Chapman Pincher. All the Bill can be understood if we consider the past embarrassments of the Government. That is the whip that is flicking the poor Secretary of State on. That is the impetus to make sure that similar embarrassments do not happen again. It is because of what happened with prior publication in the "Spycatcher" case that the Government are trying to promote a transparent absurdity. The second reason why the Government are trying to pass into law the transparent absurdity that a secret that has already been published is somehow still a secret is the notion, not of keeping our secrets from enemies of the public, spies or enemy agents, but of keeping secrets from the people themselves. It is a "them and us" notion. It is the notion that it is all right for insiders to know something, but it would be rather too embarrassing if the public at large knew about it.

Because the motivation behind the clause is not the public good but past Government embarrassment, and the "them and us" notion that, in some paternalistic sense, there are some things that insiders should know but the general public should not know, and because the attempts of Government Back Benchers to defend that absurdity have been so transparent, I speak in support of the amendments.

Mr. Hurd : It might be for the convenience of the Committee if I gave at this point the Government's reaction to the amendment. When we spent a substantial time discussing the public interest defence, I felt that a major clash of well argued principles was involved. In this case, the loophole which has been opened by the amendment has not been justified by my right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour). I shall try to explain why.

The main principle which we are trying to adhere to in the Bill involves harm and whether disclosure was harmful. That principle runs through all our arguments, even when we argue that there is an absolute offence because all forms of disclosure in that category would be harmful. It is not a matter of great principle whether the information has been published before. The central issue is whether the disclosure was harmful. It may well be that in many cases, perhaps even in most cases, the question whether there has been prior publication is relevant in assessing harm. No one denies that. The question is whether it must always be the governing consideration, whatever other arguments might be produced about harm or likely harm.

Mr. Gorst : How does my right hon. Friend reconcile what he has just said with the provisions of article 10 of the European convention on human rights? After talking about

"freedom of expression regardless of frontiers",

there is a reservation in paragraph 2 which says :

"The exercise of these freedoms may be subject to such ... conditions as are prescribed by law and are necessary".

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If there is prior publication abroad, how will it be possible to say that the provision is necessary. Even if there is harm, that provision is not recognised by the article that I have quoted.

Mr. Hurd : We discussed article 10 yesterday, and the hon. Member for Caithness and Sutherland dealt with it. I shall come to the point as to why I believe that harm which could be caused by secondary publication could meet the criteria of harm in the Bill and therefore the criterion in article 10 of the European convention on human rights.

The hon. Member for Birmingham, Erdington (Mr. Corbett) mentioned the Sky channel. The hon. Gentleman is under a misapprehension, as Sky is within the jurisdiction of this country and therefore within the scope of the Bill because of the uplink from the United Kingdom, although the satellite is Luxembourg-based. Therefore, the worries that he built upon that distinction do not exist.

I entirely accept what the hon. Gentleman said about The Guardian newspaper being in a muddle about that. In the nicest possible way, may I say that no other newspaper has been so consistently muddled and has so muddled its readers about the Bill. I do not understand why newspapers should be in a muddle about this point, because the assessment that they will make is exactly the same for publication or republication. If the criminal law is to apply, newspapers will have to think before publishing something which might fall within the scope of the criminal law. The problem will not be made any more difficult, because the tests of harm remain the same for publication or republication.

To return to the main point, which is extremely important, in many examples second publication would do no harm because, if there was any harm, it had been caused by the first publication. In the unlikely event that the prosecuting authorities decided to mount a case, the defence would argue precisely that : it would argue that no damage had been done. Moreover, the prosecution would have to prove that the defendant knew or had reasonable cause to know that such damage would be caused. That is a very high hurdle for a prosecution which was trying to show that, although something had been published elsewhere, there had been damage on secondary publication which met the test of harm.

8.15 pm

In clause 5, the test of harm is very high in those circumstances. There is no question of there being no prior publication defence. The question is whether that defence should be absolute and should sweep the board in all circumstances, and whether it should trump all other arguments before they are made. As my hon. Friend the Member for Banbury (Mr. Baldry) said, that puts an onus on the supporters of the amendment to justify so absolute a defence. We are saying that it should not be absolute and that it should be for the jury to decide in such cases.

I am sorry that I missed the first few minutes of the speech of my right hon. Friend the Member for Chesham and Amersham, but I listened to him carefully. He and the hon. Member for Erdington were deeply and delightfully out of date. My right hon. Friend was thinking solely in terms of the Soviet Union. That may have been realistic in the old days, and I do not wish to discuss whether the Soviet Union monitors or wishes to monitor every

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publication so thoroughly and so immediately that no second publication could possibly cause harm. I shall not go into that, because it is not relevant to this argument.

My hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen) left the Chamber after making an extremely relevant point. We are not talking only of the Soviet Union and other super-powers ; we are talking emphatically about a number of other Governments which, in one way or another, support state terrorism. There is no reason to suppose that they are equipped to read every publication and that they would automatically pick up anything useful to them from a first publication. Nor are we talking only about Governments. Here I drop the banter to stress a crucial point.

During the debate on the Security Service Bill, I mentioned the increasing effort of the security services devoted to

counter-terrorist work. There are quite a few organisations--two or three in Northern Ireland and others in the middle east--which are quite sophisticated and probably attempt to piece together, bit by bit, disclosure by disclosure, how we counter their efforts in relation to techniques, equipment or personnel. [Interruption.] The hon. Member for Erdington casts scorn on that, but it is not a comical matter. If there were a leak or a disclosure in some relatively obscure publication of something which was secret or important to counter-terrorism--the hon. Member for Linlithgow (Mr. Dalyell) will take my point--there is no reason to suppose that the people who are trying to keep ahead of us and piece together how we deal with their activities would necessarily pick up that publication the first time.

Therefore, it should be open to the prosecution not to make any assumptions but to argue before a jury that the second publication had caused the harm. As I said, it will be a high hurdle that it will have to pass. It will have to prove not only that harm had been done but that those who published it knew that harm was likely to be done. They are two high hurdles. To say that that is wholly and on every occasion totally absurd, that that risk can be easily run and that there are no circumstances in which the fact of the first publication should not be an absolute and total defence seems to be a risky business.

Mr. Gorst : Surely the problem and, perhaps, the fallacy in my right hon. Friend's argument is that the prosecution will also have to prove that, on the first occasion, publication was not known to the people to whom it might have been damaging were it to be known by them.

Mr. Hurd : The onus will be on the prosecution to prove beyond reasonable doubt that the second publication did harm of the kind defined in the Bill. As I said, that will be a difficult business. I am not saying that the prosecution will have an easy task. I am saying that it must be given the opportunity in such circumstances to deploy that case. It should not, regardless of any conceivable circumstances, be ruled out as a line of argument.

Mr. Richard Shepherd : This is clearly a most important point. There is a corresponding case. My right hon. Friend is effectively and reasonably putting an anxiety about some circumstances--not all--of a subsequent publication. Will he give hon. Members just one instance, so that we can see what is identified, of a subsequent publication that has been damaging or has been held up in the courts or anywhere? I just want one instance.

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Mr. Hurd : I am giving instances not of past cases but of present dilemmas-- [Interruption.] I am not talking about hypotheses ; I am giving a series of facts.

Mr. Shepherd : Not of past cases.

Mr. Hurd : I am speaking not of past cases, I agree, but of what is happening today. What has happened in the past four or five years, and what has certainly happened in the work of the Security Service, is a major concentration of effort on countering terrorists and the supporters of terrorists. My hon. Friend is right to take the matter seriously.

This example is important--other people may think of other examples--and it is a real example in the work of Government. I would not be happy if there were this loophole which, in all circumstances, would enable the prior publication defence to be absent. I do not think that would be safe. I refer to the point which my right hon. Friend made at the beginning of his remarks and which the hon. Member for Hackney, North and Stoke Newington (Ms. Abbott) developed in exaggerated terms.

It is not possible to regard the absence of an absolute prior publication defence as the result of an effort to avoid embarrassment or to keep British people in ignorance of something that other people know. We must consider the harm tests and the hurdle that the prosecution would have to surmount when faced by first publication. We should also consider the point in the Bill about which I reminded my hon. Friend the Member for Thanet, South (Mr. Aitken) and which covers all the offences listed in clauses 1 to 3. It is not plausible to argue that this is an attempt to keep people in the dark.

Mr. Shepherd : Part of what my right hon. Friend has been contending for has been recent history. I refer to the "Spycatcher" case and the investment of huge sums by the British Government to pursue right up to the House of Lords something that was previously published and available all around the world. One pressure is the sheer cost of the state prosecuting a newspaper for publishing something that had been published and previously available. Will the Home Secretary give me an instance of such a cost to society at large on the hypothesis that a subsequent revelation might be harmful? I can understand a first revelation being harmful, but I should like an instance of a second revelation being harmful.

Mr. Hurd : If this amendment were passed, that kind of instance would be more likely. The Committee must consider whether it is worth taking that risk. My hon. Friend mentioned the "Spycatcher" case. That involved the civil law--the search for injunctions. I think that my hon. Friend was satisfied by the ultimate judgment, but there was a great deal of speculation that we were proposing to put into the Bill matter that would alter the civil law on confidentiality. Contary to expectations, we did not do that. We, too, believe that we can live with the judgment in the civil case.

This is a matter of criminal law. It is a matter of deterring within the narrow field that we are talking about. It is a matter in which criminal sanctions might lie if deterrence failed. In the great majority of cases in which prosecutions might be tempted to prosecute, the presence of a first publication would create difficulties for them, which they would see that they were unlikely to surmount.

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In cases in which they unwisely proceeded to prosecution on a second disclosure, the jury would simply be unconvinced that the second disclosure had caused harm.

There could be--it is right that the Committee should understand this point --a relatively small number of cases in which the prosecution should be able to argue that the second disclosure had done one or more of the harms specified in the Bill and that the person disclosing for the second time knew that that was likely to be the result. There might be few cases, but they could be serious and dangerous.

Mr. Maclennan : The Home Secretary is clearly floundering. He has failed to answer a question by several Conservative Members about whether there were any real circumstances in which the repetition of what is not any longer secret could be harmful. By his failure to address that question, he has made it abundantly plain that there is not any serious, or indeed any, risk.

Mr. Hurd : The hon. Gentleman lashes out at me. Having spent a bit of time on this matter now, does he say that no harm could be produced by the relevation in a major national newspaper of techniques in counter- terrorism which had previously been disclosed in a technical journal? Does he say that there is no possibility of serious harm resulting from that second disclosure?

Mr. Maclennan : By his riposte to my attack, the Home Secretary has demonstrated that he is trying to move the burden of proof from himself. He has been asked by several Conservative Members to give any instance he cares to choose of a situation in which the repetition of what is already public--that is, what is already not secret--could be damaging. Despite the fact that he has until 10 pm, and all hon. Members are ready to give way to him, he has not been able to show that the repetition of what is already in the public domain could be harmful.

Mr. Rooker : There is a difficulty. I accept some of the thoughts behind the Home Secretary's position. If he gave an example to satisfy hon. Members' questions, the immediate response would be for hon. Members to ask "Why did you not prosecute?" Only that kind of example would be meaningful, but, clearly, it will not come from the Home Secretary.

Mr. Maclennan : The Home Secretary's unwillingness or inability to give an example is a reflection of what is plain common sense--that what is already public cannot be secret. It is not only a matter of common sense but a matter of the meaning of language.

Several Hon. Members rose --

8.30 pm

Mr. Maclennan : I will give way in due course, but I hope that hon. Members will allow me to develop my argument.

The right hon. Member for Chesham and Amersham (Sir I. Gilmour) put the case which has not yet been answered. When official information has been published, it is no longer secret and therefore it cannot in any real sense of the word need to be covered by the law.

Several Hon. Members rose --

Mr. Maclennan : I have not yet had an opportunity to develop my argument. I shall be willing to give way later.

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The Parliamentary Under-Secretary of State for the Home Department (Mr. Douglas Hogg) : The hon. Gentleman is making a bad case very slowly.

Mr. Maclennan : I am making it slowly because of the number of interventions.

I take seriously the Home Secretary's assertion that we must address the issue whether publication has caused harm. But this prior publication defence is intended to deal with issues where there is an absolute offence- -for example, concerning information about the interception of communications or actions done under a warrant or by members of the intelligence or security services. These are absolute offences where there is no harm test.

Mr. Jeremy Hanley (Richmond and Barnes) rose--

Mr. Maclennan : No, I must be allowed to finish at least a few sentences.

There being no harm test involved, it seems clear that it is unreasonable not to recognise that if information of that kind--it is the "Spycatcher" situation--has been published, it should be open to journalists to repeat it.

Mr. Hanley : Would the hon. Gentleman seek to defend a person in a situation where it was impossible to prove that he had put information in an obscure journal merely so that he could subsequently publish in a broader arena, and in a situation where it was impossible to prove that he had leaked the information to the first obscure journal?

Mr. Maclennan : That point was ably dealt with by the right hon. Member for Chesham and Amersham, when he pointed out that, on the whole, spies are more inclined to read the technical journals than the columns of the Sun to get their information, and the damage will have been done by the first revelations.

Mr. Douglas Hogg : Sloppy thinking.

Mr. Maclennan : The Under-Secretary has come into the Committee late and has not heard any of the discussion on the amendment. If it is sloppy thinking, it is thinking that was espoused by the Conservative Government of which he was a member when they published the earlier measure. At no point during the debate has the Home Secretary attempted to explain why he has stood on his head, for that is what he has done. Although he has said, "We got it entirely wrong, " he has not been prepared to give the reasoning why he has changed his mind.

Mr. Hurd : I have not changed my mind.

Mr. Maclennan : The right hon. Gentleman may not have changed his mind, but the Government have. The measure published in 1979 had a prior publication defence, as he knows.

A telling point was made in an intervention by the hon. Member for Hendon, North (Mr. Gorst) about the virtual certainty that what is proposed runs foul of article 2.2 of the European convention on human rights. The refusal to allow prior publication to be regarded as a proper defence is plainly disproportionate. There can be no question but that if the matter came before the European Court--as it definitely would if it ever got before a British court in the first place--we should again be dragged back and have the Government's position struck down.

The Home Secretary said yesterday when I was dealing with the relevance of article 10 and the freedom of information guaranteed by the European convention that

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he was prepared to consider the issue again and return to the matter at a later stage, having taken further advice. I hope that that is his intention, for if there is any part of the Bill which needs reconsideration, it is that applying to the republication of what is no longer secret. It must be ridiculous to make it a criminal offence to republish what is in the public domain.

Mr. Whitney : The hon. Member for Caithness and Sutherland (Mr. Maclennan), like all other critics of the Bill, resolutely refuses to take on board the basic point that harm must be created. I do not know how often we need to repeat that. Unless additional harm can be proved, there can be no point in bringing a prosecution and one would not be brought.

As my hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen) said, we are not living in a simple world of John Le Carre , of spying, of the Soviet Union and of dead letter boxes. It is a much more complicated world, one in which many other countries are potential enemies and involved in state terrorism. Indeed, the techniques used against the national interest go wide, into the sphere of political warfare and disinformation. It is against that much more complicated background that we must consider this legislation.

I offer the Committee a case history so that we may understand what we must legislate for in relation to disinformation techniques and the like. My example is manufactured in the sense that it was a manufactured piece of intelligence from the Soviet intelligence service. That much seems to be well documented. It could have been a piece of real hard intelligence, although I am sure it was not. In mid-1983 the Soviet intelligence service started to create a story that AIDS was a phenomenon which had emerged from United States genetic engineering experiments in Fort Detrick in Maryland. It then sought to use the prior publication technique to sell that information around the world, and originally the Soviet magazine Liturnaya Gazeta quoted allegedly the Indian magazine Patriot as the original source of the story. Subsequently, Patriot denied that it was, but by that time the disinformation was on its way. It ran around the world, so that by 26 October 1986 it was a front page story in the Sunday Express , a major coup for that paper here. A certain Professor Jacob Segal was billed as a French professor--he was in fact an East German--and the same story was retailed. It went a month later to a Spanish magazine and then to an Argentine magazine, and each time it was quoted as being an original source.

I offer that story to the Committee as a demonstration of a bogus piece of information, but a technique against which we must frame our legislation. It might have been a piece of real intelligence from British official sources.

Mr. Hugh Dykes (Harrow, East) : I am not only most grateful to my hon. Friend but astonished by the example that he gives, which disproves his own argument. Is he postulating that because a rubbish newspaper with a big circulation chooses to run a daft story based on disinformation or lies generated by the Soviet intelligence service, that story should be subject to the test of harm or of prior publication?

Mr. Richard Shepherd : Besides, what does that have to do with the Bill?

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Mr. Dykes : My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) asks what it has to do with the Bill, which is an even more relevant question.

Mr. Whitney : The example that I gave relates to a spurious item of intelligence, but the Committee should consider the techniques that are used in the world of disinformation and prior publication. For an example nearer home, I revert to the hypothetical case that I used when I intervened in the speech by my hon. Friend the Member for Banbury (Mr. Baldry), which seemed to create some amusement among my hon. and right hon. Friends.

Mr. Richard Shepherd : I want to be helpful to my hon. Friend, but he is travelling over terrain that is not to his advantage. Yesterday, we had the benefit of the background to the Chevaline case, but it bore no relationship to the example that my hon. Friend gives. It does not serve the purpose that he has construed that it will serve, but serves that identified by the right hon. Member for Plymouth, Devonport (Dr. Owen) in his exposition of that story, as to the nature of maintaining a vital defence secret from society. The right hon. Gentleman made the point that classification was broken under authorisation by our then Secretary of State for Defence, Francis Pym.

Mr. Whitney : I am entirely aware of the point to which my hon. Friend refers. The right hon. Member for Plymouth, Devonport (Dr. Owen), who obviously cannot be with the Committee tonight, put a certain gloss on those events. It may be that he had a certain interest, given that he was so closely involved in them.

I ask my hon. Friend and the Committee to extend their imagination further. I well understand the role played by my noble Friend Lord Pym, but the situation then was different. The Conservative party and the British people as a whole understood--and still understand--the need to keep our Polaris submarines and nuclear missiles effective. The problem with the Labour Government's responsible leadership at that time was that they had grave doubts about the Labour party. I hope that my hon. Friend now better understands the example that I hypothesised.

In 1975 or 1976, the Soviet network was, one must assume, effective enough to understand the work on Chevaline that had been put in hand. That is not the issue. But how easy it would have been to use the Indian Patriot or some other external newspaper as the medium of primary publication, and then to run in Britain the great story that the Labour Government were embarking on the Chevaline programme. Would the Labour Government have had the courage to admit to that decision, or would they have caved in? None of us shall ever know. My assumption is that the Labour Government would have turned tail and fled from Chevaline, and that British defence interests would then have been harmed.

Ms. Abbott : I have listened carefully as the hon. Gentleman has given the Committee that example not once, but twice. I am clear that the second publication would have embarrassed the then Labour Government, but I am not clear why it would have materially affected British defence interests. Embarrassment is one thing, but matters of defence and national interest are another.

Mr. Whitney : It is safe to assume that the information in question would have been well in the hands of hostile intelligence services, and had it appeared in an obscure

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magazine published in some remote African town, no harm would have been done. But if that report had been picked up by the British press, it would have argued, under the test of prior publication, that as the "Tanganyika Echo" had carried that story, it could do so. If it had done so, it is 99 to 100 per cent. certain that the then Labour Government would have turned tail on their decision to develop Chevaline. Consequently, British defence interests would have been harmed.

8.45 pm

Sir Ian Gilmour : My hon. Friend's contention is that, had the provisions of the Bill been law at that time, the then Labour Government would have brought a prosecution against any newspaper that published such a report. Is he seriously suggesting that that example is relevant? My right hon. Friend's Bill may be illiberal, but I do not believe that it is as illiberal as that. Is my hon. Friend seriously suggesting that if a newspaper republished information that a Labour Government was spending money on updating nuclear weapons, they would have brought a prosecution?

Mr. Whitney : I was seriously suggesting that, in the circumstances that I hypothesised, the then Labour Government would have given their eye teeth for the protection given by the Bill, because then such a report could not have appeared in the British press. I refer to the deterrent effect of such a provision. I do not know what a former Labour Government might have done, but does my right hon. Friend agree that British defence interests could have been harmed? We are all citing hypothetical cases, and by definition are stretching to know what might happen in certain circumstances. I offer the Committee another example.

Mr. Richard Shepherd : My hon. Friend's first example seems risible to me. Is he suggesting that a defence of second publication is unnecessary on the basis that a Government might stop what they were doing, and that that of itself must be against the national interest? That is a ludicrous line of argument.

Mr. Whitney : This is a more serious subject than my hon. Friend seems to allow. The record of a very few people in the last Labour Government keeping the Chevaline decision very secret is well known. The chances of that secret being known at the time would have been much greater without the defence of prior publication. I do not know what kind of secrets we might be talking about today, but it requires little imagination to bring the argument into the present and into the future, and to understand the defence of the national interest as opposed to a harm test that would have to be accepted by a court.

Mr. Edward Heath (Old Bexley and Sidcup) : Is my hon. Friend saying that if information of the kind he described was published in a technical journal overseas and then republished in this country by newspapers, and that as a result, CND supporters in the Opposition brought down a Labour Government, that would be treated as a case of harm?

Mr. Whitney : My right hon. Friend takes a more sanguine view than that to which his normal state of pessimism has accustomed us. He assumes that the Labour Government would have fallen. I hope that he is right. I agree that their chances of falling at the next general

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election would have been high, but that might have been some time away, and we would have suffered four more years of harm under a Labour Government that had written off a sensible defence policy that my right hon. Friend had launched.

I give the Committee another example, which concerns publication of the name of a former head of MI6. These days, we are accustomed to such names being published, but in days before, that was not the case. Once that name was published in a German magazine in 1976, a British newspaper carried a photograph of the head of MI6 on its front page. That is dangerous. It exposed that individual to terrorist risk. That is another example of prior publication. Admittedly, and sadly, in that area, we have moved on.

This is the real world. This is not the simple world in which my right hon. Friends are able to make fun of these propositions. The serious proposition is that the harm must be proved. It is very difficult ; it must be perfectly clear to a court. Therefore it is extraordinary, as has been said many times this evening, that those who criticise the Bill seem to think that there can be no case at all in which harm can be created. The reality, of course, is that it can be created.

Mr. Dalyell : Unlike the hon. Member for Caithness and Sutherland (Mr. Maclennan), I do not think that the Home Secretary was floundering or bantering on this issue. If the House of Commons is to be responsible about this we have to take what the Home Secretary says about Governments extremely seriously. In fact, it is frivolous not to.

I say to the hon. Member for Wycombe (Mr. Whitney) that the Chevaline issue was very complicated. When I tried to rebuke Jim Callaghan when the first bombshell of Chevaline came, he replied very sweetly, as only a former Prime Minister can, "You didn't have the wit to ask me." Nor, indeed, did any of us. Secondly, technically, I am told, Chevaline was a very complex upgrading issue. It was not a new project and there was not an element of deceit. I am not at all sure that it was a good example, but I do not want to stray. I want to put two questions to the Home Secretary. He intervened to respond to a point that was made much earlier by the hon. Member for Thanet, South (Mr. Aitken) about the repetition of information conveyed and covered by so-called absolute offences. The right hon. Gentleman referred, in replying to his hon. Friend, to clause 5(3). Could I ask him to confirm that clause 5(3) has nothing to do with absolute offences? It refers to offences under clauses 1 to 3, which contain harm tests. The absolute offences that we are talking about are in clause 4(3). Any and every repetition of this information is a fresh offence regardless of whether it causes harm and even if it is clear that no harm is done. The 20th or 30th repetition of information covered by clause 4(3)--that is, unauthorised phone tapping--is still an offence. Is this not a ludicrous situation?

Mr. Hurd : The absolute offence to which the Committee has given most attention--quite naturally, it took up most of our first day--is created under clause 1 : that is, the offence for a member or former member of the security or intelligence services to make a disclosure which relates or purports to relate to security or intelligence. That offence, commonly called an absolute offence, is covered, as the hon. Gentleman will see, by clause 5(3),

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