House of Commons Hansard Debates for 2 May 1989

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subject to the provisions of the Order of 13th February, those proceedings shall, if not previously brought to a conclusion, be brought to a conclusion not later than the expiration of the period of two hours beginning with the commencement of the proceedings on this Order.

2.--(1) For the purpose of bringing any proceedings to a conclusion in accordance with paragraph 1 above--

(a) Mr. Speaker shall first put forthwith any Question which has already been proposed from the Chair and not yet decided and, if that Question is for the amendment of a Lords Amendment, shall then put forthwith the Question on any further Amendment of the said Lords Amendment moved by a Minister of the Crown and on any Motion moved by a Minister of the Crown, That this House doth agree or disagree with the Lords in the said Lords Amendment or, as the case may be, in the said Lords Amendment as amended ;

(b) Mr. Speaker shall then designate such of the remaining Lords Amendments as appear to him to involve questions of Privilege and shall--

(i) put forthwith the Question on any Amendment moved by a Minister of the Crown to a Lords Amendment and then put forthwith the Question on any Motion made by a Minister of the Crown, That this House doth agree or disagree with the Lords in their Amendment, or as the case may be, in their Amendment as amended ;

(ii) put forthwith the Question on any Motion made by a Minister of the Crown, That this House doth disagree with the Lords in a Lords Amendment ;

(iii) put forthwith with respect to each Amendment designated by Mr. Speaker which has not been disposed of the Question, That this House doth agree with the Lords in their Amendment ; and

(iv) put forthwith the Question, That this House doth agree with the Lords in all the remaining Lords Amendments ;

(c) as soon as the House has agreed or disagreed with the Lords in any of their Amendments Mr. Speaker shall put forthwith a separate Question on any other Amendment moved by a Minister of the Crown relevant to that Lords Amendment.

(2) Proceedings under sub-paragraph (1) above shall not be interrupted under any Standing Order relating to the sittings of the House.

Stages subsequent to first Consideration of Lords Amendments 3. Mr. Speaker shall put forthwith the Question on any Motion made by a Minister of the Crown for the consideration forthwith of any further Message from the Lords on the Bill.

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4. The proceedings on any such further Message from the Lords shall, if not previously brought to a conclusion, be brought to a conclusion one hour after the commencement of those proceedings. 5. For the purpose of bringing those proceedings to a conclusion-- (

(a) Mr. Speaker shall first put forthwith any Question which has already been proposed from the Chair and not yet decided, and shall then put forthwith the Question on any Motion made by a Minister of the Crown which is related to the Question already proposed from the Chair.

(b) Mr. Speaker shall then designate such of the remaining items in the Lords Message as appear to him to involve questions of Privilege and shall- -

(i) put forthwith the Question on any Motion made by a Minister of the Crown on any item ;

(ii) in the case of each remaining item designated by Mr. Speaker, put forthwith the Question, That this House doth agree with the Lords in their Proposal ; and

(iii) put forthwith the Question, That this House doth agree with the Lords in all the remaining Lords Proposals.

Supplemental 6.--(1) Mr. Speaker shall put forthwith the question on any Motion made by a Minister of the Crown for the appointment and quorum of a Committee to draw up Reasons.

(2) A Committee appointed to draw up Reasons shall report before the conclusion of the sitting at which it is appointed.

7.--(1) In this paragraph "the proceedings" means proceedings on Consideration of Lords Amendments, on any further Message from the Lords on the Bill, on the appointment and quorum of a Committee to draw up Reasons and on the Report of such a Committee.

(2) Paragraph (1) of Standing Order No. 14 (Exempted business) shall apply to the proceedings.

(3) No dilatory Motion with respect to, or in the course of, the proceedings shall be made except by a member of the Government, and the Question on any such Motion shall be put forthwith.

(4) If the proceedings are interrupted at any time by a Motion for the Adjournment of the House under Standing Order No. 20 (Adjournment on specific and important matter that should have urgent consideration), the bringing to a conclusion of any part of the proceedings which, under this Order, are to be brought to a conclusion after that time shall be postponed for a period equal to the duration of the proceedings on that Motion.

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Official Secrets Bill

Lords amendments considered.

Clause 1

Security and intelligence

Lords amendment : No. 1, in page 2, line 18, at endinsert-- "( ) Subject to subsection (7) below, a notification for the purposes of subsection (1) above shall be in force for the period of five years beginning with the day on which it is served but may be renewed by further notices under subsection (6) above for periods of five years at a time."

11.23 pm

The Minister of State, Home Office (Mr. John Patten) : I beg to move, That this House doth agree with the Lords in the said amendment.

Mr. Deputy Speaker (Mr. Harold Walker) : With this, it will be convenient to consider Lords amendment No. 2.

Mr. Patten : The amendments provide that a notification shall expire after a period of five years from the date on which the notification is served unless it is renewed or previously revoked. The amendments follow closely the substance of amendments tabled by Opposition parties in another place and I note that the Opposition spokesman in another place, Lord Elwyn -Jones, said that he accepted these amendments with pleasure.

Mr. Tam Dalyell (Linlithgow) : Would this be the right moment to ask the Minister whether he has any sympathy at all, not with a five-year period, but with some kind of annual report back to the House on the actual mechanics of the operation of the Act that he hopes to put through?

Mr. Robin Corbett (Birmingham, Erdington) : If any of the amendments have any substance, which is open to doubt, perhaps it is these two. The Minister and I have had exchanges on this matter. The Bill creates a class of individuals or groups who can be notified that they are subject to the provisions of the Bill. In other words, they will be civil servants in other Government Departments who come into contact with the security and intelligence services or Government contractors. The Home Secretary, who regrettably has had to leave us, said at one stage that there was no intention of designating groups of people. I believe that that was an exercise in semantics. It is obvious that a class of people in a particular office and grade--for example, in the Home Office or the Ministry of Defence--who, by the nature of their work, would have regular contact with the intelligence and security services, would, although not named as a group for notification, make up such a group.

The Minister will remember that it was in paragraph 47 of the White Paper that the notion of the designation of individuals or groups was first postulated, although, as I said, the Home Secretary denied that later. I do not want to make heavy weather of this. We will not know how many people are told that they are notified persons or whether they are told that they are no longer notified persons. No distinction is made in the Bill about the weight or class of the information that those people would have come across in the course of their duties. If they have come across it, that is that.

I welcome the five-year renewal of the notification, but can the Minister assure the House that notification under

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the Bill will be kept to the absolute sensible minimum, in line with the Government's ambitions for the Bill? Can he assure us that when it comes to deciding whether notification should be extended for a further five-year period, the power to prolong notification will be used even more sparingly than in the first instance? Clearly, time changes the relevance and importance of the information which perhaps led to the decision to notify in the first place. The Minister would help the House if he could give those assurances.

Mr. John Patten : The hon. Member for Linlithgow (Mr. Dalyell) has taken a close interest in the proceedings of the whole of the Bill. Of course, it would be open to him or to any other hon. Member, or a Select Committee, at any stage during the parliamentary cycle to submit the workings of the Official Secrets Act, if such it is at that stage, to examination.

I remember the exchanges between the hon. Member for Birmingham, Erdington (Mr. Corbett) and myself in Committee on the Floor of the House. I do not think that I can add anything to the explanation of the people who may be notified to that which he will find recorded in the Official Report of 25 January 1989 at columns 1128-29. I can certainly give the undertaking that only those people who need to be notified will be notified.

Mr. Dalyell : I appreciate the spirit in which the Minister has said that, but I think that he has forgotten what Back-Bench life is like. I do not know how he can say that it is up to me or anybody else to scrutinise the Bill. Week after week we apply for Adjournment debates, and we may or may not be lucky. I submit that that is not a satisfactory way of dealing with something which should be monitored by Parliament on a regular basis.

The other alternative was that it should be submitted to a Select Committee. Which Select Committee?

Mr. Robert Maclennan (Caithness and Sutherland) : Further to what the hon. Member for Linlithgow (Mr. Dalyell) has said, on a number of occasions the Lord President has made it plain that Ministers will not answer questions about security matters in the House. The Minister's statement tonight does not lie nicely with such previous statements.

11.30 pm

Mr. John Patten : Both hon. Gentlemen are chasing after the wrong hare. The hon. Member for Linlithgow asked what were the opportunities for keeping the workings of the Act under review. The House provides many opportunities for the workings of Acts to be kept under review.

Mr. Dalyell : Which Select Committee?

Mr. Deputy Speaker : Order.

Mr. Dalyell : I am sorry, but I asked a question about which Select Committee.

Mr. Patten : The Defence Select Committee might wish to interest itself in the workings of some parts of the Official Secrets Act because of its interest in defence security. A range of Select Committees look at the workings of different Acts that concern the House.

Question put and agreed to.

Lords amendment No. 2 agreed to.

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Clause 2

Defence

Lords amendment : No. 3, in page 2, line 41, leave out "jeopardises" and insert "endangers".

Mr. John Patten : I beg to move, That this House doth agree with the Lords in the said amendment.

Mr. Deputy Speaker : With this it will be convenient to discuss Lords amendment No. 4.

Mr. Patten : The amendments replace the word "jeopardises" in the international relations harm test in clauses 2 and 3 with the word "endangers". The amendments respond to the suggestion in the other place that "endangers" might be clearer to juries than "jeopardises". The Opposition parties in another place fully supported that suggestion and the names of members of those parties appeared on the Order Paper with that of my right hon. and noble Friend the Minister of State in support. That was a welcome touch of unanimity in our consideration of the Bill.

Mr. Teddy Taylor (Southend, East) : I am sure that the Minister will accept that the amendments are significant. They strengthen the basis on which we could regard something as damaging. It is interesting that they affect almost every clause in the Bill, except one. That is significant and important.

Clause 2 contains the word jeopardises, which will be affected by the amendments. In clause 3(2) the word jeopardises is replaced by endangers. Clause 5(3) contains the words "the disclosure is damaging" and, in that connection, damaging is defined closely as something which endangers. Clause 6 relates to international relations and clause 6(4) uses the word "damaging." In all those instances we are replacing the word jeopardises with something which seems more precise and more limiting, namely, damaging.

In relation to clause 6, how on earth is it possible to decide whether a disclosure is damaging to international relations?

Mr. Deputy Speaker : Order. It would not be in order for the Minister to respond to that question. We are debating the amendments to clauses 2 and 3.

Mr. Taylor : Yes, but a study of the Bill shows that one is referred back to those clauses for a definition of the word damaging as it appears in clause 6(4). That clause says :

"damaging shall be determined as it would be in relation to a disclosure of the information, document or article in question by a Crown servant in contravention of section 1(3), 2(1) and 3(1)". In other words, the clauses are covered by the amendments. In those circumstances it is fair to say that if we accept the amendment it has a specific consequence on clause 6(4). I am not trying to bring in new material. I am simply trying to show that the amendment affects clause 6(4), which refers back to the definition of damaging given earlier in the Bill.

If we accept the amendment, and thereby have a consequential change in relation to the word "damaging" in clause 6(4), how will that affect any consideration of damage in Britain's relations with an international body, and particularly in our relations with the EEC, bearing in mind that Mr. Jacques Delors, the president of the

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Commission, has said that before long about four fifths of all legislation affecting the House of Commons will go through the Council of Ministers procedure?

I am not asking a silly question. It is vital that those who are engaged in EEC work should have an idea of the tests that will apply if there is any disclosure. How will it endanger the country's interests as opposed to jeopardising those interests? Do the Government regard this as a significant change? May we be told of the categories of information to which this will apply?

Will the amendment have a bearing on clause 4? Although it appears to affect all the other clauses in the measure, it seems not to concern clause 4. If so, does the Minister consider that to be reasonable? Clause 4 deals with the consequences of what will happen if anybody reveals information which

"results in the commission of an offence".

That has wide scope because it relates to any

"Crown servant or government contractor"

who

"discloses information to which this section applies and which results in the commission of an offence".

Am I right in thinking that the amendment will apply to all the other clauses but will not sharpen up the definition in clause 4? I ask that because discussions are taking place now about the controversial issue of the revelation of information in reports of inspectors who have been looking into a company merger. We also have the possibility of an inspection by what is called the serious fraud squad. Bearing in mind the need to protect the community, it would be sad if we sharpened up the definition of disclosure in all the other clauses, but made no change in clause 4.

If the Government are arguing that only issues which endanger the national interest should have this protection, it would be wrong if it were not applied, for example, to reports about the mergers of companies or investigations by the serious fraud squad, where the need to give protection to the general public seems greater than ever.

Those of us who oppose the Bill in principle are grateful that the Government have brought forward this new definition, which will sharpen the position and heighten the test by which it will be decided whether an action endangers the national interest as opposed to jeopardises it. Will this apply to what I would call other minor and consequential disclosures and, if not, why not?

The Minister will accept that civil servants indulge in what I would describe as a "normal amount of disclosure" for a variety of reasons. Some of those might endanger the country, some of those civil servants might be bad people and some might just not be prepared to look on something confidential as confidential or something secret as secret.

Every hon. Member would accept that we must have some law to restrict their activities. On the other hand, when we have a law relating, for example, to companies, where the Government have complete and absolute power to decide whether a document should be published, and when and whether an issue should be referred to the Monopolies and Mergers Commission, and the person affected has no guarantee or protection, is it fair and reasonable that in that one case the Government are making no concession and no commitment? I hope that the Minister can give us some guidance as to why he is going forward with this in regard to international relations, which is a major concession, but is not prepared to make the same concession on clause 4.

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Mr. Maclennan : It appears that the amendments are significant, particularly the amendment to clause 3. It will be recalled that in earlier debates we called in question the width of the nature of the documents that were protected from disclosure. By the use of the word "endangers" in preference to "jeopardises" the Government appear to be conceding that the nature of the documents themselves may be also somewhat confined by the use of the word endangers.

It is not conceivable that the interests of the United Kingdom abroad could be endangered by the revelation of, for example, certain minor communications about commercial matters which are the stuff of everyday traffic between Whitehall and Brussels, and in which the hon. Member for Southend, East (Mr. Taylor) takes such an interest. They might be important matters, involving the interests of the nation, but not matters about which it would be appropriate to use the word endangers. I hope that the Minister will confirm that that interpretation of the Government's intention is correct.

Mr. Jonathan Aitken (Thanet, South) : The amendments should be welcomed, but I wish to probe the Minister briefly on a linguistic point and a political point. As to the linguistic point, I simply seek his confirmation that he believes that the word "endangers" heightens the harm test. That may seem obvious until one goes back into the linguistic roots of language and realises that in older days to be in jeopardy was considered a much higher level of serious trouble than to be in danger. I refer to the example in the King James authorised version of the Bible when Uriah the Hittite was placed in jeopardy by King David sending him into the front line, which was considerably more dangerous than merely being in danger, as various other biblical characters were in less life-threatening situations.

With the passing of the years it is probably true that "jeopardises" has fallen behind and "endangers" has gone ahead. I simply wish confirmation from the Treasury Bench that it is certain that it is using the word in the modern sense and that "endangers" heightens the threshold of proof. That is desirable. I can see a good Queen's counsel in front of a jury managing to get an unfortunate victim or two acquitted by playing on the words and saying, "Members of the jury, can you believe that my client intended to endanger or cast into danger the whole interests of the United Kingdom," whereas many a civil servant might have been able to suggest that the interests of the United Kingdom were jeopardised by a minor leak. Perhaps more important than the linguistic point is the Minister's attitude to the House of Commons, which he appears to place on an inferior level to the other place. When he made his few words of introduction, he clearly said that the Government have experienced this dramatic conversion on the road to Damascus, swapping the word "jeopardises" for "endangers" because of what was said in the other place.

11.45 pm

It is in the memory of many hon. Members in this debating Chamber tonight that exactly the same points were made on the Floor of the House by many hon. Members. I recall making some of them myself. At that time we met a wall of silence. There was not a single sign of any concession. The Minister might at least have the

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grace to say tonight that the Government took into account what was said in the House of Commons, not just what was said in the other place. His words from the Dispatch Box this evening certainly gave the impression that only the arguments in the other place weighed with him.

Finally, I want to penetrate the mystery of the Government's thinking on this matter. Why have they decided to make this concession? On the whole, they have not been convinced by any argument from any source throughout the Bill's proceedings, yet they have suddenly introduced amendment No. 3. Was it a matter of letting one of the good amendments come up on a roulette wheel? Spin the wheel and see which number is lucky. Why this amendment? Why were the Government convinced about something which they rejected out of hand when it was discussed in this House?

In the old days when my right hon. Friend the Prime Minister was a member of the Cabinet one referred to the statutory woman. Now we have the statutory amendment. We have at last got the Government to accept one of the multitude of well-argued and convincing amendments. Why this one? I should like to know.

Mr. John Patten rose --

Mr. Deputy Speaker : I take it that the Minister has to the leave of the House to speak again.

Mr. Patten : With the leave of the House, Mr. Deputy Speaker. The hon. Member for Caithness and Sutherland (Mr. Maclennan) made an important point about the substance and the meaning of the word "endangers" and its relationship to the Bill. My hon. Friend the Member for Thanet, South (Mr. Aitken) made a linguistic point and then laid down a political challenge. I shall deal with those points before dealing separately with the important points made by my hon. Friend the Member for Southend, East (Mr. Taylor).

As I explained in my brief introduction, the amendments respond to a suggestion that the jury would find it easier to cope with the concept of endangering than with that of jeopardising. I do not regard the amendment as making a substantial change in the effect of the test of harm, other than to make it more readily applicable and understandable by the jury. On balance, the average woman or man in the jury room might find herself or himself easier and happier with the word "endanger" than with the word "jeopardise".

Mr. Aitken : In seeing the amendment as something which does not change the Bill but simply helps the jury, is my hon. Friend hoping for more acquittals or more convictions?

Mr. Patten : The Bill, as my hon. Friend knows, is based on leaving matters to the jury. Ministers must keep their hopes, pious or not, to themselves, and I intend to do so tonight.

My hon. Friend made what was almost a constitutional point, referring to our earlier debate on the guillotine motion. I intended no discourtesy to this place when I referred to the other place. We are dealing with amendments sent to this House from the other place. Therefore, I have to refer to the other place, even though the right hon. Member for Blaenau Gwent (Mr. Foot) wishes it ill and a short life.

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Mr. Maclennan : Is the Minister really saying that there is no difference in modern parlance between the use of the word "jeopardise" and the use of "endanger"?

Mr. Patten : I am simply saying what I said a moment or two ago, which will be recorded in Hansard. The jury will find it easier to cope with the concept of endangering than with that of jeopardising. All through the debate we have been talking about the use of words and trying to get the words right in an attempt to improve the Bill. Tests of harm have been discussed at considerable length in the House and in the other place. Both Houses have agreed that the tests are based on the right principle and are set at the right level. Those issues have been settled and we should not seek to reopen them in this debate.

I turn to the important questions asked directly of me by my hon. Friend the Member for Southend, East. I hope that he will forgive me if I do not become too involved in company investigations and matters European. I certainly will not mention M. Jacques Delors, other than to do so now.

Clause 6(4) contains a damage test that attracts the language of the test in clause 2, in relation to defence, and in clause 3 in relation to international relations. Thereafter, it would be for the jury to decide, as always under the provisions of the Bill, whether the harm test had been met.

My hon. Friend the Member for Southend, East also asked about clause 4, and whether the change involving "endanger" affected clause 4. The answer to that question is no, because clause 4 does not attract the harm test to which the amendments refer.

Understandably, because of his interests, my hon. Friend the Member for Southend, East has made some comments which have gone wider than the terms of the amendments. The points that he raised about clause 4 are completely separate. The Government believe that the provisions in clause 4 are right and do not need amendment.

Question put and agreed to.

Lords amendment No. 4 agreed to.

Clause 8

Safeguarding of information

Lords amendment : No. 5, in page 7, line 47, after "servant" insert "or government contractor"

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