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Mr. Robert Maclennan (Caithness and Sutherland) : I support the new clause and amendment No. 9. In earlier debates on clause 4, and in more general debates on the absolute offences under the Bill, the Home Secretary has failed to draw attention to the fact that the defence of prior publication, which he has said is a relevant defence to be considered by a jury, is not available to someone who is accused. The provisions of amendment No. 9 are designed to ensure that the defence of prior publication may be deployed in certain, very narrow, circumstances. Under the amendment, it is not treated as an absolute defence ; it is a factor which may be taken into consideration. I cannot see how, in line with the Home Secretary's earlier argument, he can fail to accept the amendment.
If we were debating clause 4 as a whole, we might wish to raise what we did not have time to raise in the guillotined debate, which is why it is necessary to create an absolute offence about telephone tapping when disclosures about other forms of surveillance are not absolute offences. Some such disclosures will not cause harm. It would not be harmful, for example, to reveal that five years ago the phone of a possible suspect had been tapped, but the surveillance had been ended when it was realised that he was not in any way implicated in any wrongdoing. I cannot do more than draw the attention of the other place to the enormities of clause 4 and hope that it will take that to heart.
The amendment would allow the Home Secretary to recognise the force of the arguments deployed in the "Spycatcher" case by at least two of the Lords who considered the matter--Lord Brightman and Lord
Column 1029Griffiths. The Home Secretary will remember that Lord Griffiths spoke of how the Attorney-General had admitted that, despite the fact that "Spycatcher" had received worldwide publication and was available in this country to anyone who wished to read it, the law forbade the press, the media or anyone else to comment on any part of it, saving only that which had already been referred to in the judgment of the courts. He said that if such was the law, the law would be an ass. If we do not accept amendment No. 9 tabled by right hon. and hon. Members on both sides of the House, the law will, indeed, be an ass. I seek the Home Secretary's assurance that if we have not got it quite right, he will take the point on board and table his own version in the other place.
It is in respect of clause 4 and the ban on repeating information that has already been disclosed so that no conceivable harm can be caused that the Bill is most likely to fall foul of article 10 of the European convention on human rights. The Home Secretary has not given adequate justification for the blanket ban. Therefore, we look to him to accept amendment No. 9, if not in the letter, at least in the spirit.
Mr. Winnick : Despite what the right hon. Member for Plymouth, Devonport (Dr. Owen) said, I would imagine that even this Government would draw the line at trying to ban the memoirs of former Ministers, so we are dealing basically, despite what the Bill says, with those who serve in the security and intelligence services. Much has been made of the Wright case. The right hon. Member for Brighton, Pavilion (Mr. Amery) said that the Wright case was probably one of the reasons for the introduction of the Bill. That was a long-running saga, and if Ministers had been involved in secret collusion with Wright, they could not have done more to make him a millionaire. Without that publicity, the book would probably have sold only a modest number of copies, instead of becoming a bestseller. The Government did Mr. Wright a great favour, at the expense of the taxpayer.
I have not read much of Wright's book because I find it too boring. However, I have read another book by a former member of the security and intelligence services, a book that the Government tried to ban. It is called "One Girl's War" and is written by Joan Miller. I know that my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) has read it, because he quoted from it, and a number of other people have read it. I made sure that it was in the Library. I did not buy my own copy. I cannot for the life of me see any reason why the Government should try to ban it.
Under the Bill, because Joan Miller had been involved in the security services, the book would be banned. However, she was involved in the security services during the war years, hence the title. What possible harm did the publication of that book do to the security and safety of the nation? The Government tried to stop it being published here but did not succeed, any more than they did with Wright's book, although Joan Miller's book came out first. Secondly, under the provisions of the Bill, the Government would have the powers to stop any such publication.
Column 1030Lifelong confidentiality is nonsense. It has not worked in any other western democracy--certainly not in the United States. If the Government insist on the Bill going through as it is, as they obviously will, because I have no doubt that the amendment and new clause will be rejected at 6 o'clock, sooner or later there will be another Wright case. There will be another saga and a lot of money will be spent for no purpose. Despite the passage of the Bill, if such a book is published abroad with the resulting commotion, it will end up, like Wright's book, in the United Kingdom. The Government of the day will be the victim of a great deal of laughter, as this Government were over the Wright case.
I hope that the Home Secretary will reflect on the matter. He has not thought carefully about any previous amendment. He has been quite obstinate. No matter how moderate either the amendment or the speeches in favour of it, he has said no. I do not have much hope that he will change his view at this stage, but he should at least think about it.
Mr. Hurd : My right hon. Friend the Member for Brighton, Pavilion (Mr. Amery) was generous in his comments on our earlier proceedings. I regret that time that could have been spent debating the issues arising out of the amendments was spent on an empty and deeply unprofitable point of procedure.
The starting point from which to consider new clause 1 is the need to ensure that the security and intelligence services work effectively, and out of that need has come what is described as the doctrine of lifelong confidentiality. It is set out in clause 1 and was discussed without restriction of time on the first day of the Committee. It was strongly contested, as it continues to be contested, by critics of the Bill but it was approved. It is no good the hon. Member for Walsall, North (Mr. Winnick) reopening the debate. The decision is clear.
New clause 1 creates a right--I agree that it is hedged about with conditions--that, under certain conditions, cannot be unreasonably withheld. Therefore, new clause 1 sits oddly, as my right hon. Friend the Member for Pavilion agreed, with the lifelong duty of confidentiality. I doubt whether my right hon. Friend would have thought to put this into statute if he were satisfied with the policy, because he is not normally one for putting things in statute if he is satisfied with the policy. He explained to the House why he was dissatisfied.
On Second Reading, my hon. Friend the Minister of State gave an account of the procedure which governs the position when a member or former member is considering writing a book. That account was an accurate description of the steps which a member or former member needs to go through before there can be any question of publication. When a former member proceeds to publication without seeking authorisation, or continues even when permission has been refused, the Government must take action to enforce the duty of
confidentiality. As he said, my right hon. Friend the Member for Pavilion wrote to me after the Second Reading debate. On reading his letter, it was clear that it was necessary to say more, not about the procedure but about the policy within which the procedure would take place. That is why my hon. Friend the Minister of State took advantage of the relevant debate on the new clause tabled by my hon. Friend the Member
Column 1031for Torbay (Mr. Allason). He used the words which have already been quoted and which I quoted when the matter was raised a week or so ago. He said :
"authorisation to members and former members to disclose information about their work will be rare and given only in exceptional circumstances."--[ Official Report, 25 January 1989 ; Vol. 145, c. 1104.]
On 31 January, I wrote in exactly the same terms to my right hon. Friend, whom hon. Members knew could not be present at the debate, on the new clause moved by my hon. Friend the Member for Torbay. There is no question of repudiating correspondence. What is in Hansard of 25 January is on all fours with what I wrote to my right hon. Friend six days later.
I do not object to the agreeable, able teasing from my hon. Friend the Member for Thanet, South (Mr. Aitken). The last time he spoke on this matter, not having verified all his sources, he was wrong to say that there had been or might have been an attempt to mislead the House, and to say different things in correspondence with my right hon. Friend than was said in Committee. I hope that I have established that that is not so.
Mr. Budgen : Is it not unsatisfactory to announce that some people will be allowed to break the law as a result of some policy that gives protection to a certain class? Is it not better to try to build that exception into the law, rather than leave it to the arbitrary discretion of the Executive?
Mr. Hurd : That is disclosure without authority. I am not sure whether my hon. Friend has been paying the same close attention to the Bill that he paid during earlier stages of the Committee's proceedings. If he looks at clause 1, he will find that that is so.
Mr. Amery : I am a little lost in the argument that my right hon. Friend has been developing. Does he say that what my hon. Friend the Minister of State said in Committee, using the same words as he used to me in his letter, is in effect a repudiation of what he said on Second Reading?
Mr. Hurd : In reply to the Second Reading debate, my hon. Friend was dealing with the procedure that would be followed. That is a statement of the procedure, and I will turn to one or two points connected with it in a moment.
Having received my right hon. Friend's letter, it was clear that something more needed to be said, not about the procedure but about policy, and that was said first by my hon. Friend in Committee and then by me in writing to, and discussing the matter with, my right hon. Friend.
It would not be fair to dwell on specific points in my right hon. Friend's new clause, because he was open-minded about it. He puts the Secretary of State into too prominent a position in deciding these matters. The security and intelligence service concerned would have a central role in considering whether the information could be disclosed. He also got the role of the staff counsellor slightly wrong. I refer him to what my hon. Friend the Minister of State said on Second Reading. The staff counsellor is to provide members and former members of the services with someone who is not a member of the services with whom he or she can discuss concerns and anxieties about their work which it has not been possible to allay through normal staff management channels. That refers to authorisation, as it does to any other matters.
The hon. Member for Caithness and Sutherland (Mr. Maclennan) continues to press his point about article 10 of
Column 1032the European convention. I continue to say that it is entirely compatible with our obligations. Articles 10.1 and 10.2 provide explicitly that the exercise of the right
"to receive and impart information and ideas without interference by public authority carries with it duties and responsibilities". and accordingly
"may be subject to such formalities as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime preventing the disclosure of information received in confidence".
As the hon. Gentleman will know, there is case law, including the Handyside and The Sunday Times cases. I am satisfied that the provisions in the Bill are compatible with that article and with the convention as a whole.
The right hon. Members for Plymouth, Devonport (Dr. Owen) and for Morley and Leeds, South (Mr. Rees) talked as though we were bringing in some new restriction. I want to be entirely accurate. There is one limited respect, and that is the use of the word "purport". There was discussion in Committee about that. There is an extension of the existing restriction, but that is a relatively minor point. In all other respects, the obligation under the Bill is the same as that under the present law. This happens so often in our debates. We are removing so much from the scope of the criminal law and modifying in the direction of openness what remains so extensively with the harm test that when something remains more or less unchanged, according to some hon. Members, it sticks out like a sore thumb.
Mr. Foot : How does this cover ministerial memoirs and reports? Are they covered by the phrase "only in rare and exceptional cases", or is the present situation to continue? The right hon. Gentleman has not made it clear.
Mr. Hurd : It is to continue under the law. We are talking about people who entered work which they knew was secret, and that fact was made totally plain when they entered the work. People who are notified will be in the same position. It cannot be retrospective. There is no expectation of a right of publication, even hedged about with conditions. Of course there are different types of book. We can imagine somebody writing a book about East-West relations, or a politician writing his memoirs and dealing incidentally with work that might fall under this category. I disagree that full-blown memoirs would be a good thing. The policy and principle in clause 1 are accurate and right.
I agree with the importance of amendment No. 9. The situation in respect of warrants has completely changed, compared with the mid-1970s, when the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) and other signatories to the amendment were in positions close to these matters. There was then no statutory procedure and, as the right hon. Gentleman knows, no reason in law why the Secretary of State should be involved in organising individual interceptions. There was no commissioner with statutory powers to invigilate the application of that duty by the Secretary of State, no tribunal to whom the aggrieved citizen could turn, and no staff counsellor to whom anxious members of the Security Service could turn. They are substantial changes over the past five years and they completely alter the background of the amendment. With the Security Service Bill, we propose to extend that principle further. That entirely alters the background to the amendment.
Column 1033Clause 4(3) is consistent with what we have done, and the amendment would not be. It would allow free circulation of information about matters such as operational techniques, as long as they had been published previously and as long as their disclosure could be held to meet a form of damage test. It would be signalling that, in certain circumstances, these matters could become general and accepted currency.
The new clause has not taken on board the difficulty in bringing any such matters to court. How could the prosecution introduce evidence without revealing or confirming in some detail information about the use of those provisions which are essential if we are adequately to protect the citizen? [Interruption.] The right hon. Member for Sparkbrook knows that the procedures for trial in camera are inadequate to meet that point. We are on the same point that we have had to make before. The Opposition are proposing that irreparable damage could be done and that thereafter the lawyers could argue about justification. The question before the House is whether that is too risky a procedure in this limited area. I have not time to expound yet again to the right hon. Member for Sparkbrook the position of the gentleman who believes that his telephone is being tapped. I shall do so in time for the right hon. Gentleman to comment. I believe that in this narrow and limited area this absolute provision--which I accept--is the correct one.
It being Six o'clock, Mr. Speaker-- proceeded, pursuant to the order [13 February] and the Resolutions this day, to put forthwith the Question already proposed from the Chair.
Question put, That the clause be read a Second time :
The House divided : Ayes 197, Noes 309.
Division No. 110] [6 pm
Abbott, Ms Diane
Adams, Allen (Paisley N)
Amery, Rt Hon Julian
Banks, Tony (Newham NW)
Barnes, Harry (Derbyshire NE)
Beith, A. J.
Benn, Rt Hon Tony
Bray, Dr Jeremy
Brown, Nicholas (Newcastle E)
Buckley, George J.
Campbell, Menzies (Fife NE)
Campbell-Savours, D. N.
Clark, Dr David (S Shields)
Clarke, Tom (Monklands W)
Clwyd, Mrs Ann
Cook, Frank (Stockton N)
Cook, Robin (Livingston)
Cunningham, Dr John
Davies, Rt Hon Denzil (Llanelli)
Davis, Terry (B'ham Hodge H'l)
Dunwoody, Hon Mrs Gwyneth
Ewing, Mrs Margaret (Moray)
Field, Frank (Birkenhead)
Fields, Terry (L'pool B G'n)
Foot, Rt Hon Michael
Forsythe, Clifford (Antrim S)
Garrett, John (Norwich South)
Gilmour, Rt Hon Sir Ian