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Column 1048operations. The idea that somebody could say, "I did that because, after all, there was a little crime about" simply would not work. It is not--
Mr. Hurd : Indeed, it might not work. The jury might not be convinced and then whatever harm had been done would have been done and there would be no rectifying it, but it would be a small satisfaction if the chap went to prison.
Sir Ian Gilmour : The chap is going to prison anyway. He is unlikely to have his decision about revealing this information determined by whether there will be a public interest offence. He will be a man, certainly on the examples given by my right hon. Friend, who will be either off his head or a near traitor. So the idea that he will be influenced by a provision such as this is not applicable. In other words, my right hon. Friend has adduced a way out of arguments that would not apply to any of the examples that we have in mind.
My hon. Friend the Member for Thanet, South (Mr. Aitken) asked, in relation to this being a great liberalising measure, when there had last been prosecutions in any of the categories that are to be removed from the Official Secrets Act. I understood the Home Secretary to admit that there had not been any for a long time. But he said that it was still a liberalising measure because civil servants in the Department of the Environment would no longer be able to use the Official Secrets Act as a reason for not giving information.
I cannot regard that explanation as bringing the Bill within the category of a liberalising measure because, as my hon. Friend said, they will still be able not to give the information. In other words, one rather unserious excuse has been removed from them, and that is the main reason given by my right hon. Friend to justify his claim that this is a liberalising measure. It is tidying up the law--I appreciate that and that is, no doubt, a good step to take--but in tidying it up it is tightening it elsewhere, which, I am afraid, makes it the opposite of a liberalising measure.
Not for the first time the Home Secretary has got matters seriously wrong. The expression in new clause 2, "neglect in the performance of official duty or other serious misconduct",
by definition qualifies the previous reference to,
"crime, fraud, abuse of authority"
as being serious misconduct. On that count the right hon. Gentleman is speaking nonsense.
The Home Secretary goes on to say that the danger in giving a public interest defence is that the cat will already be out of the bag. He gave as an example the battle plans of BAOR and said that by the time the matter came to court the secret would be out. But we are talking in terms of a defence, and it would be no defence for me to release the battle plans of BAOR and say that I thought fraud had been committed in Squadron No. 2. That would not be the point. It would have come out because I had already released those battle plans. At that point, not at any later stage, the facts would have come out.
I share the anxiety of the hon. Member for Caithness and Sutherland (Mr. Maclennan) about Government amendment No. 1. The fact that something is confidential
Column 1049could of itself be sufficient to establish guilt under the previous subsection. It cannot be right, with such contorted thinking, to leave the measure without any public interest defence.
In the same way as it has been argued that the law of confidentiality cannot be extended to find people guilty simply to cover up an iniquity--in the words of the last century--so it cannot be the case here that a crime-- be it fraud or whatever--revealed in this process must automatically carry a verdict of guilty because a public interest defence cannot be adduced.
I return to the example that I have given in the past and to which I have not yet received a reply from the Home Secretary, and that is the position we face on the Clyde. If it is known that a nuclear leak has taken place, and it is in the interest of the communities there that that fact should be revealed, the decision to reveal cannot be defended in the courts because the harm that would have been done would come under clause 2 in relation to defence.
We cannot leave the Bill--any more than we could leave the law of confidence, the concept that the Government have been fond of using in recent years--without a defence. Equally, if there is no public interest defence in this case, the Home Secretary is stripping out almost all possible forms of defence, despite the fact that we are dealing with areas which are prone to offence of one kind or another. That is the enormity of what the right hon. Gentleman is doing, sometimes on the basis of grammar. I hope that he will look at the whole matter again.
Mr. Dykes : I, too, support new clause 2 and will address my remarks to that and to the other amendments in this series. I am glad that anxiety has been expressed about Government amendment No. 1 because the more one considers it, the more worried one becomes lest it represents an unsatisfactory replacement of the present provision.
I hope that in commenting on new clause 2 I shall not repeat too much of what was said last week in Committee. I, too, am astonished by the example that the Home Secretary gave about a revelation of top secret battle plans. I cannot see how that could come into the context of an adjudication in the area we are now discussing. So inextricably and exclusively wrapped up is the issue in clause 1, like a massive piece of treason, espionage or a combination of both, that even if there were, coincidentally and surprisingly, some conjunction of internal departmental serious misconduct, and so on, one would have to envisage two separate cases. There would be no connection between the two. Even if they took place in the same court building, they would be a million miles apart intellectually, politically and constitutionally.
Although it has been suggested by Opposition Members that my right hon. Friend the Home Secretary has a closed mind on this, I hope that he will give further thought to the possibility of accepting new clause 2 and will further examine amendment No. 8. I am disturbed by the fact that the implication of the Government's response is always that a person concerned in a clause 2 case would be rushing hastily into some form of public disclosure. In the new clause we are thinking in realistic terms of the tail-end of a long process of internal investigation through the proper channels before any public disclosure has been
Column 1050made. It is not like a journalist writing an article about policy. Here we have someone who, with great psychological pain and travail, feels moved to reveal something basically wrong and rotten by way of a happening or misconduct. I hope that it will not have occurred in a Government Department, and it is to be hoped that all Departments are free of such matters, but such things do happen from time to time for various reasons, perhaps out of moral weakness. Even inefficiency can produce misconduct and should be revealed.
Aldridge-Brownhills (Mr. Shepherd), who is known for his careful choice of words, used the expression "monstrous" to describe the peril facing the body politic and the public if we permit the Bill to be passed in its present form.
I was postulating that it would be a long, agonising process for the person who was going to blow the whistle or spill the beans. One can imagine the agony that he would feel and the pacing up and down, as it were, that would occur in the mind and spirit of a conscientious public servant, for example, in using the proper channels, followed by lengthy investigations, with the matter passing up through the various layers of scrutiny internally by his respected superiors--one hopes that they would be respected.
By the same reciprocal token, that would involve the same massive concentration of mind on the part of those superior officials having to respond to that person's complaints. They must not brush them aside. Various books have been written about the Civil Service of the past, describing how such matters could be brushed aside, with career references being made to those concerned to ensure that they concentrated their minds on the real issue, which was keeping their mouths shut, and preventing them, if necessary, from pursuing the matter. That would be a wholly beneficial process which would help all future Governments and it should therefore be welcomed. If it were an implicit part of the Bill, that would satisfy the whole House.
The new clause is extremely solemn and important. Once again, regrettably and sadly, we see that except for one important exception that we discussed earlier today--I repeat that I have sympathy for my right hon. Friend the Home Secretary's position and the problems and pressures that he faces--the Government are not prepared to entertain any indispensable improvements. The public interest defence surely comes into that, ranking equally with publication as being absolutely ineluctable and indispensable elements in improving the Bill. If that improvement is not made, it will be a matter of regret--and something that the Government themselves will regret later.
Question put and negatived.
Amendment made : No. 1, in page 3, line 37, leave out subsection (3) and insert--
(3) In the case of information or a document or article within subsection (1)(b) above--
Column 1051(a) the fact that it is confidential, or
(b) its nature or contents,
may be sufficient to establish for the purposes of subsection (2)(b) above that the information, document or article is such that its unauthorised disclosure would be likely to have any of the effects there mentioned.'.-- [Mr. Hurd.]
Amendment agreed to.
Amendment made : No. 3, in page 6, line 37, leave out a State which is'.
Amendment made : No. 4, in page 7, line 28, leave out a State which is'.-- [Mr. Hurd.]
Amendments made : No. 5, in page 10, line 41, leave out subsection (2)' and insert subsections (2) and (3)'.
No. 6, in page 10, line 42, after which', insert only'. No. 7, in page 11, line 4, at end insert--
(3) In determining for the purposes of subsection (1) above whether only States are members of an organisation, any member which is itself an organisation of which only States are members, or which is an organ of such an organisation, shall be treated as a State.'.-- [Mr. Hurd.]
Mr. Heffer : On a point of order Mr. Deputy Speaker. I must point out that the procedure that we have just observed illustrates how wrong it is to introduce guillotines because they do not allow right hon. and hon. Members properly to discuss amendments in which they have an interest.
but do not include any disclosure made to a solicitor for the purpose of seeking legal advice'.
The amendment concerns the right of an individual, such as a member of the security services or a person classified under the Bill, to consult his solicitor if he has reason to believe that he is subject to an illegal act by the security services. Hansard for 16 February records at column 503 that a statement on that subject was made by the Minister of State, Home Office purporting--I believe that is the fashionable word--to raise a point of order. He made that statement with the contented air of a man who was suddenly sure that he had mastered his brief. Unfortunately, the Law Society's judgment of his comments about the relationship between solicitors and their clients remains what it was before the Minister's
Column 1052clarification. As we need a statement that we can examine before 7.30 pm, I shall describe the Law Society's judgment as clearly as I can.
The Law Society ought to know something about the obligations of solicitors, and it ought to have a locus in respect of the protection of solicitors in defending their clients. The society makes a point that I made rather more feebly and inadequately in response to the Minister's original, late-night, surprise announcement.
Clause 7 concerns and defines authorised disclosures. A disclosure by an individual is legal and authorised
"if, and only if, it is made in accordance with his official duty."
The Bill specifies who may make disclosures. It also describes the circumstances in which a person may make disclosures, and shall therefore be authorised to do so. Clause 7 does not list among the authorised persons to whom disclosures may be made a solicitor retained by an individual. Nor does it include among the authorised purposes a disclosure for the purpose of obtaining legal advice. Therefore, the engaged solicitor is not an authorised person, and neither is a disclosure to that solicitor authorised.
As clause 7 stipulates the circumstances in which disclosures shall be legal, it does not need a major logician to conclude that all other revelations or disclosures will be unauthorised and illegal. The Minister of State, Home Office said that it was right to draw such a conclusion in the context of the Bill, but added--albeit late at night, but with further clarification a fortnight ago--that the privilege that affects a solicitor's relationship with his client overrides that provision.
When the Minister first made that point, some concern and doubt were expressed about whether the relationship between a solicitor and his client is a qualified privilege is not, anyway, absolute in all circumstances, and does not provide absolute protection. The hon. Member for Thanet, South (Mr. Aitken) asked whether the privilege that obtained in conventional and common law could somehow supersede statute law and an Act that expressly and explicitly rules out consultation between client and solicitor in the circumstances I described. However, in the Minister's second statement, he brushed all such arguments aside, saying that he had taken legal advice and had no doubt that the relationship between solicitor and client is privileged and, notwithstanding the provisions of the Bill and even though a solicitor is not an authorised person, nor could become one, a client could approach his solicitor in the circumstances I described.
As the Law Society had raised that matter with my right hon. and hon. Friends in the first place, we inevitably asked the society for its judgment on the Minister's statement. Its initial reaction was that the Minister's view was a "red herrring" that did not begin to meet the facts-- the term "red herring" is the society's not mine. The society categorically states : "The fact that a communication is privileged does not provide a defence if the act of communication is itself a crime."
As a solicitor is not an authorised person, as consultation with a solicitor is not an authorised activity, and as only those persons and activities specified in clause 7 enjoy legality, the act of revelation to a solicitor would be a crime. If the Law Society is to be believed, and if its judgment is to be given any credence, the protection that the Minister described cannot exist.
Column 1053I wish to leave the Attorney-General with as much time as possible to answer that point. In any event, as the most lay of laymen, I am reluctant to cite the precedents cited by the Law Society. However, it informs me that the leading case is that of Regina v. Cox and Railton, which established that all communications between a solicitor and his client are not privileged and cannot be privileged if they are themselves concerned with the commissioning of events and if they are themselves a crime because of the nature of the communication.
I also draw to the Attorney-General's attention the case of Francis and Francis v. Central Criminal Court. The society categorically states that no protection exists for a member of the secret services who, believing that he has been treated illegally by the process of the services, approaches a solicitor for advice on the way in which he can obtain redress.
I hope that the right hon. and learned Gentleman can assure the House that the danger that I have described does not exist, but there is only one way in which I, at least, can be completely convinced. If it is possible for a solicitor to be consulted in the way I described, there can be no possible objection to making the amendment to the Bill. If the situation is as clear and as favourable to the solicitor's prospective client as was blandly stated by the Minister two weeks ago, all that has to be done, to make everyone aware of that, is for the Government to accept the amendment.
The Attorney-General (Sir Patrick Mayhew) : It may be convenient if I express my opinion at this stage on the point raised by the right hon. Gentleman. I shall do it in the orthodox way of addressing myself first to the effect of the amendment and then dealing specifically with the points raised by the right hon. Gentleman. Let us imagine that a Crown servant has in his possession, by virtue of his position, an important document relating to defence which is protected under clause 2. Let us suppose that he takes it into his head to bargain with rival bidders in the media for the damaging disclosure--we will assume that it would be damaging--of that document which is of high value to the media. If he did that, of course it would be an offence under the Bill.
Now let us suppose that for fear that he may not be paid he consults his solicitor in advance about how payment may be secured. [Interruption.] Let not the right hon. Gentleman say that he is concerned that this may be a fanciful scenario because the whole thrust of the Opposition's point in this regard is fanciful in practical terms. Let us suppose that for fear that he may not be paid the Crown servant consults his solicitor in advance about how payment may best be secured, and, for the purpose of consulting him, he discloses the document to him.
The amendment would deprive that disclosure to the
solicitor--criminal though its purpose would undoubtedly be--of any criminality under the provisions of the Bill, because the scheme of the Bill makes disclosure the kernel of the offence. I should have thought that that would be, in the view of any hon. Member, a dangerous and absurd result. It cannot sensibly have been asked for by anybody and there could be no justification for it. What is more, it would damage the law of legal professional privilege, and for the first time it would extend the protection of legal professional privilege to anyone using a solicitor for a criminal purpose. [Interruption.] No, he did not ; I will come to that point.
Column 1054Why should we change the law to do that? In section 10(2) of the Police and Criminal Evidence Act 1984 Parliament expressly excluded items held with the intention of furthering a criminal purpose from that Act's definition of items subject to legal privilege. The context was the search and seizure provisions of the Act. The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) will remember that, because we were both on the Standing Committee on the Bill. That was a reflection of the common law rule, dating back for at least 100 years, certainly to the Cox and Railton case cited by the right hon. Gentleman. As recently as 1986 Parliament adopted it once again in the Drug Trafficking Offences Act 1986.
In Cox and Railton in 1884 it was held that not all communications between a solicitor and his client are privileged from disclosure ; only those passing between them in professional confidence and in the legitimate course of the professional employment of a solicitor are privileged. The headnote of the case said :
"Communications made to a solicitor by his client before the commission of a crime for the purpose of being guided or helped in the commission of it are not privileged from disclosure."
In a case decided last year--Francis and Francis--again mentioned by the right hon. Gentleman, it was decided that the 1884 case still defined the extent of the exception to the rule of legal professional privilege. That is enough to dispose of the amendment. Why should we make extraordinarily dangerous and absurd change?
Out of deference to the argument I will go further. My hon. Friend the Minister of State did not say that privilege overrides the terms of the statute. That would be wrong. What my hon. Friend said was : "Legal professional privilege acts to prevent the production in evidence of such a communication and hence to deprive of its foundation any prosecution that might ever be sought to be founded on such a communication in the circumstances that the right hon. Gentleman envisaged in his first point of order. But of course, it is well established that anyone who, when communicating with his solicitor, seeks the latter's help in the furtherance of some criminal purpose is disqualified in respect of that communication from the benefit of privilege."
He also said :
"The function of legal professional privilege is to aid the administration of justice and not to aid crime. But such a person's position is quite different from that of someone who discloses information to his solicitor in the process of seeking advice in good faith about his own legal position in relation to it."--[ Official Report, 16 February 1989 ; Vol. 147, c. 503.]
[Interruption.] Of course it is the point. What we are discussing in this scenario is that someone who is told improperly under the Bill that his telephone line is being tapped goes to his solicitor to ask what is his position in criminal law in relation to that. It would be idle and fanciful to suppose that in doing that he espoused any criminal purpose. He may say, "I have been told about this. I am asking you what my position in law is."
Mr. Hattersley : The Attorney-General says that it would be idle to suppose that anyone who went to a solicitor saying, "I have been told by a member of the security services that my telephone is being tapped," was espousing a criminal purpose. The Home Secretary told us that the act of going to any individual, other than one who was authorised, and making that statement was in itself a criminal act. That is the problem.
Column 1055attaches to that by reason of the wording of the clause. The whole point is that the foundation for any criminal prosecution arising out of it is removed by reason of the operation of legal professional privilege, because legal professional privilege protects all communications and disclosures between a client and his solicitor which take place in the ordinary professional employment of a solicitor. That is what was said in the Cox and Railton case. But there is, and has always been, excluded--the House insisted on the exclusion in the two recent Acts that I mentioned--those communications which are done to further a criminal purpose. [Interruption.] It is not something to get excited about ; it needs close attention.
The purpose of legal professional privilege is to further the administration of justice. It cannot possibly be said that any communication with a criminal purpose can be said to be in furtherance of the administration of justice ; it is in furtherance of crime. That was the very point that my hon. Friend made. It is clearly established that the rule exists for the protection of the client to enable him to confide unreservedly in his legal advisers. The protection of privilege from disclosure is part of the law of evidence. Like all that law, it is intended to further the administration of justice. The administration of justice is not furthered by preventing any evidence from being given in court of a disclosure made to a solicitor in order to further a criminal purpose. That is why the law is not such an ass as to extend protection in those circumstances.
It is a very different matter when a disclosure occurs by reason of a man asking his solicitor where he stands in law, with no criminal purpose at all. It is very much in the interests of the administration of justice that there should not be able to be levelled against him in support of a criminal charge the very fact that he sought such advice. So I endorse in every particular what my hon. Friend said.
Sir Nicholas Bonsor : The House has two difficulties. The first is that, as the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) said, the act itself is a criminal offence. If the act itself is a criminal offence it is difficult to see how the privilege applies. The second problem is that, whatever my right hon. and learned Friend may say, what happens in the House will not be considered by the court. The court will look only at the face of the legislation and in doing so may take a different view from that of my right hon. and learned Friend.
The Attorney-General : I am sure that the court will look much further than the face of the legislation if this point ever becomes a practical consideration ; I emphasise that. Of course, it would have to imply the consent of the Attorney-General of the day to any such prosecution. [Interruption.] I mentioned that because we are talking about realities, but I shall deal with this point on the law of legal professional privilege. As is plain from the argument adopted by the judge in the Cox and Railton case, the judgment of the court for Crown cases reserved is entirely consistent with what I have said. Leaving out any consideration of prosecutorial discretion, the protection given in these circumstances deprives of its foundation any prosecution that might ever be sought
It being half past Seven o'clock, Mr. Deputy 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 amendment be made :--
Column 1056The House divided : Ayes 196, Noes 309.
Division No. 111] [7.30 pm
Abbott, Ms Diane
Banks, Tony (Newham NW)
Barnes, Harry (Derbyshire NE)
Beith, A. J.
Benn, Rt Hon Tony
Bray, Dr Jeremy
Brown, Nicholas (Newcastle E)
Brown, Ron (Edinburgh Leith)
Buckley, George J.
Campbell, Menzies (Fife NE)
Campbell-Savours, D. N.
Carlile, Alex (Mont'g)
Clark, Dr David (S Shields)
Clarke, Tom (Monklands W)
Clwyd, Mrs Ann
Cook, Frank (Stockton N)
Cook, Robin (Livingston)
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
Garrett, John (Norwich South)
Gilmour, Rt Hon Sir Ian
Godman, Dr Norman A.
Golding, Mrs Llin
Grant, Bernie (Tottenham)
Griffiths, Nigel (Edinburgh S)
Griffiths, Win (Bridgend)
Hattersley, Rt Hon Roy
Heffer, Eric S.
Hogg, N. (C'nauld & Kilsyth)
Home Robertson, John
Howarth, George (Knowsley N)
Howell, Rt Hon D. (S'heath)
Hughes, John (Coventry NE)
Hughes, Robert (Aberdeen N)
Hughes, Roy (Newport E)
Hughes, Sean (Knowsley S)
Hughes, Simon (Southwark)
Johnston, Sir Russell
Jones, Martyn (Clwyd S W)
Kinnock, Rt Hon Neil
Lestor, Joan (Eccles)
Lloyd, Tony (Stretford)
Macdonald, Calum A.
Mahon, Mrs Alice
Marek, Dr John
Marshall, David (Shettleston)
Marshall, Jim (Leicester S)
Michie, Mrs Ray (Arg'l & Bute)
Moonie, Dr Lewis
Morris, Rt Hon A. (W'shawe)
Morris, Rt Hon J. (Aberavon)
Oakes, Rt Hon Gordon
Orme, Rt Hon Stanley
Owen, Rt Hon Dr David
Pike, Peter L.
Powell, Ray (Ogmore)
Quin, Ms Joyce