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Prayers – in the House of Commons at 9:34 am on 22nd July 1988.
The House has today an early opportunity to comment on the proposals in our White Paper, which. I laid before the House on 29 June. We promised to bring forward early legislation and in preparing that legislation we shall, of course, want to reflect carefully on what is said today.
I believe that the mood of the House—and, indeed, the mood outside—is that the time has come to settle this question. There has been clear discontent with section 2 of the Official Secrets Act 1911 for at least the past 20 years. Serious proposals for reform were put forward by the Franks committee 16 years ago. Both the previous Labour Government and the present Government set out proposals, drawn from Franks, for reform. Despite that, section 2 is still with us. We cannot simply drift on, relying on legislation that no one considers to be reliable, and trusting in an all-embracing definition in which no one has any confidence.
I have studied the matter for some time and I am forced reluctantly to the conclusion that it is unlikely that we shall reach total agreement. There is, however, wide acceptance that the proposals contained in the White Paper are a reasonable foundation for the reform of section 2. Now we need to get on with it.
Hon. Members will have had the opportunity to read the White Paper. A number of misconceptions have been circulating about the proposals and there have been a number of misrepresentations in the press. I should like to lay some of those misrepresentations to rest. It has, for example, been suggested that we propose that no member of the security and intelligence services should ever be able to talk or write about his work. It has also been suggested that we are applying to members of those services a new regime of criminal restrictions, that no information, whatever its origin, on certain matters can be disclosed and that we propose to remove existing defences of prior publication and public interest. None of those assertions stands up.
I should like to set out briefly to the House the basic principles on which the proposals rest.
I assume that now that the Home Secretary has asserted that those theories are untrue, he will at some point return to them and explain why he holds that rather strange view.
Of course. It is sensible to start with the principles, and that is what I intend to do.
First, our proposals apply only to official information, by which is meant information that is held by a Crown servant or Government contractor in the course of his duties. If the information disclosed cannot be traced back to a Crown servant or Government contractor, it is not covered by our proposals. It might have come from a completely different source. If, for example, another Government's information was leaked directly by an employee of that Government, it could be published in this country even though it had also been provided to the United Kingdom Government in confidence. Although the information disclosed was identical to the information held by the Government, it would not be official information and our proposals would not apply to it. Secondly, our proposals apply only to the publication, without authority, of the information that we propose to protect. A great deal of information, even in the subjects covered by our proposals, has been and will continue to be made known with authority of Parliament and to the public.
Of course it will not be an offence to disclose information in all categories without authority. Our central objective is to narrow the law so that it applies only to disclosure without authority of official information which is likely to give rise to an unacceptable degree of harm to the public interest. The first step towards defining such disclosures is to identify the areas of information in which harmful disclosures might be made. We have identified six in the White Paper. For reasons given in the White Paper, we believe that none of the information in two of the areas can be disclosed without the likelihood of unacceptable harm to the public interest. In a third, information useful in the commission of crime, disclosure is by definition harmful. In proving, as they would have to, that the information is in this category, the prosecution will be proving that its disclosure is harmful.
In the remaining three categories—the particularly sensitive areas of security and intelligence, of defence and of international relations—a distinction has to be drawn between information which cannot be disclosed without the likelihood of harm to the public interest, and information which can—the test of harm. That distinction can be made only in relation to a particular disclosure. The task of making the distinction we propose to place on the jury. To make that possible, we propose to define clearly the specific forms of harm to the public interest to which the disclosure of information in each category might give rise.
This is a considerable change from the proposals that the Government put forward in 1979. Under those proposals as under the Labour Government's proposals the question whether the disclosure of information relating to defence or international relations was harmful to the nation would have been decided by a Minister. Of course, we looked hard at the point and retraced the whole history of the idea of ministerial certificates. We decided, having done that, that ministerial certificates had no future. Some of my right hon. and hon. Friends, I know, fear that we may have gone too far in that direction. It is true that we are setting the prosecution a sizeable task but not one which in normal circumstances should provide insurmountable obstacles.
There is always a risk of a jury occasionally bringing in a perverse verdict, but that is true now and it would be true even if we had retained ministerial certificates. The jury will always have the last word. No one is suggesting that Ministers in place of a jury should decide whether an alleged offender is guilty or innocent. Since that is so, it is better that the jury should make up its mind on the basis of all the evidence than that it should feel that certain relevant matters are being withheld from it. We believe that it is right in principle and practice that the question of specified harm to the public interest should be determined by the jury.
Would the Home Secretary place the verdict of the jury in the Ponting case in the category of "perverse"?
I cannot comment on the verdicts of juries in any recent case. I have not done so and I will not do so. I am simply referring to the future. I am trying to deal with the point made by my hon. Friend the Member for Orpington (Mr. Stanbrook) that by doing away with the notion of ministerial certificates, we are placing too heavy a weight on the jury. I do not think that that is so.
Even if the jury decides that a disclosure is likely to cause the specified harm to public interest, the discloser will be convicted only if he knew or had reason to believe that such harm was likely to be caused. It is clearly wrong to penalise somebody who had no way of knowing the harm that he was doing. Our proposals will ensure that such a person is not liable to conviction.
Those are the essential elements—the backbone—of our proposals. I hope that most people will accept that they are coherent and reasonable. I want now to address briefly a number of specific anxieties which have been raised.
I mentioned earlier the test of harm to be applied to the disclosure of information relating to security or intelligence. We are not proposing that any such test should apply to disclosure of such information by members or former members of the security and intelligence services or certain other people. This is nothing new. The people in these categories cannot now disclose such information without authority, without risking criminal proceedings. We are not making life more difficult or matters worse for them. We are simply leaving them, for the reasons that we have given in the White Paper, essentially as they are.
I stress again that I am talking about disclosures without authority. Members and former members of the services have in the past been authorised to talk or write about their work, and they will be so authorised in the future, but for a member to disclose information about security and intelligence without authority is, we believe, a betrayal of the trust that the nation places in those services, for very good reasons—because of the nature of the work they do and of the protection they provide for all of us.
We propose that certain people should be designated as having the same criminal liability as members or former members of the services, and the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) expressed some concern about this power. Those who are designated will be so told when they are designated, so there is no question of someone being designated because he is thought to be troublesome, or of his being designated retrospectively after an alleged offence. Designation will not be applied to all those who have contact with the security and intelligence services, still less to all those who see the information provided by those services. A certain number of people have duties that involve them working so closely with the security and intelligence services that they acquire an extensive knowledge of their organisation and operations, and we think that these people should share the same liability as members and former members of those services.
Will my right hon. Friend explain in a little more detail whether categories of people or individuals are to be so designated?
They will be designated individually. We shall need to work out carefully how that is to be done. For example, some of the people in my private office are civil servants and officials in a Government Department, who nevertheless acquire, inevitably, an extensive knowledge of the affairs of the services—perhaps a more extensive knowledge, in some cases, than most members of the services.
Will my right hon. Friend assure the House, having given that specific analysis of who is or who is not designated, that someone who gave information to the security service on a one-off basis would not be so designated?
I have given that assurance. There will be no question of designating someone retrospectively because something had been said or done.
There has been some anxiety about our proposal that information relating to security or intelligence, defence or international relations that we provide to other Governments or to international organisations should not lose the protection of the criminal law if it is leaked abroad. I recognise that this is controversial. It is one of the few points on which we are strengthening the existing law. We considered it very carefully and I ask the House to do the same. In areas central to the security and well-being of the nation, the most effective means to pursue our interests is through international co-operation, and we find this more and more.
If that co-operation is to be effective in, for example, fighting terrorism, we must exchange sensitive information with other countries. As the law stands at present, despite all that another country may do to protect our information if it is leaked abroad by a foreign national, it is not an offence to disclose it in this country, even if such an offence would do serious harm to the public interest and despite the fact that it was official information. We do not think that that is right, so we propose that such disclosure should be an offence in the same way as it would be if the leak had occurred in this country. There would be a test of harm. The prosecution would still have to prove to a jury beyond reasonable doubt that the specified harm was likely to arise and that the discloser knew that it was. The object of the proposal is to protect international co-operation in those vital areas of the nation's interests.
Will the Secretary of State tell us what would happen in the case of an MI6, MI5 or other intelligence officer who discovered that his colleagues and perhaps even his superiors were planning to undermine or subvert the Government of the day? Would that official be captured by criminal action or under the provisions of the Bill, or are there other means by which he could bring to light the subversion that might be taking place?
Indeed, there are. I am about to deal with the public interest defence. The hon. Gentleman is leaping ahead a little.
Because of the interest expressed in the notion that lies behind the hon. Gentleman's question, that there should be a general public interest defence in the cases that he has mentioned, I should stress that we are not taking away anything that now exists in the way of a defence. It is true, as my hon. Friend the Member for Thanet, South (Mr. Aitken) pointed out, that there are some words of uncertain meaning in section 2, which one or two defendants have claimed allowed the court to consider whether their disclosure was in the public interest, but it is also true to say that the courts have never accepted those words as referring other than to the public interest as decided by the institutions of Government in this country.
We have set out in the White Paper why we think that the introduction of a general public interest defence can be no part of the narrowly targeted scheme that we propose. We believe that that would bring confusion into the law where we are seeking to achieve certainty. It is not a defence to any other offence that the wider or longer-term effects of the criminal act are beneficial and that that benefit outweighs the harm done. Someone who commits a robbery and spends the proceeds of his crime for the public good is still a robber. The defence that he has used the money for good purpose does not apply.
I am talking about a general principle which the hon. and learned Gentleman will accept.
A person who, by some disclosure, knowingly causes unacceptable harm to the public interest in the hope of doing some wider good is still committing an offence. A person who finds himself in the unlikely position to which the hon. Member for Nottingham, North (Mr. Allen) referred has a recourse in the first instance to his superiors. He may not want his immediate superiors to know of his anxiety or complaint. To that end, last November we established a staff counsellor system, the first counsellor being Sir Philip Woodfield. Such a person can go to the counsellor, bypassing, if necessary, his immediate superiors and having access to the Secretary of the Cabinet and perhaps, as the Prime Minister's written answer on this point explains, ultimately to the Minister responsible for that service, either my right hon. and learned Friend the Foreign Secretary or myself, and to the Prime Minister. That recourse was laid down in Parliament, although admittedly, it has only recently been brought into being and is in addition to the ordinary processes of responsibility for the services that we are discussing. It is an additional buttress to meet the point raised by the hon. Gentleman.
My right hon. Friend may have been wrongly advised about section 2(1)(a) of the 1911 Act, which he says is not being swept away, because all judicial figures in the past have accepted that the interests of the Government and of the state are one and the same. My right hon. Friend is correct in remembering that the judge in the Ponting case and the judge in the Compton Mackenzie case took that line. However, tracing cases through, including the Sunday Telegraph case of which I have some knowledge, the judicial figures have gone in the opposite direction. Sir Winston Churchill relied on that defence, although he was never prosecuted, and Mr. Duncan-Sandys relied on that defence, when civil servants came to brief them on the lack of preparedness of Britain's military defences, because it was in the interests of the state for someone to go and tell a Privy Councillor that secret. My right hon. Friend is going down the wrong road when he says that it is of no importance to remove that key defence of the interest of the state.
Although my hon. Friend may catch your eye later, Madam Deputy Speaker, I do not think that he can show a statement of the court or a judgment of a judge which accepts that those words imply or contain a general public interest defence. In all those matters, under the existing law and under our proposal, a jury will have to make up its mind, but juries do not give reasons and, if my advice is sound, as I believe it is, I do not believe that the courts have established that there is a general public interest defence under the present law.
Does the Secretary of State accept that he has said that, on the one hand, there will be an absolute offence and that, on the other hand, juries may acquit, despite the absence of a public interest defence? Is not the consequence, therefore, that he is inviting juries in a residue of cases to deliver what he would call perverse verdicts on the grounds of the public interest? If that is the logical conclusion, as it surely must be, why does he not write, not a general public interest defence, but a specific public interest defence into the legislation?
That is a contradiction in terms. I am not inviting a jury to do anything. I am simply observing that, in this country, anyone who faces a charge that might land them a substantial term of punishment, has the right for that to be decided by a jury. That is true under the present law and will be true under our proposals. It is certainly not for a Minister to say what a jury will do. If a future Government were foolish enough to indulge in trivial or vindictive prosecutions, a jury is there as a safeguard. That is why we have a jury. I am not predicting what it would do. I am simply observing that it is the jury that decides.
I wish to deal now with the other defence that it has been suggested we should include specifically, that of prior publication. Again, there is no such defence in the existing law. I hope that those who are attracted by the idea of that defence will recognise that, in our proposals, with their central emphasis on harmful disclosure, an absolute defence of that kind does not fit. In relation to the two categories of information where there is no test of harm, we believe, for the reasons that I have given, that any disclosure is harmful.
In relation to the other categories, if, despite the fact that the information has previously been published, the prosecution can satisfy a jury beyond reasonable doubt both that the particular disclosure of that information was likely to cause the specified harm to the public interest and that the discloser knew that it was, I do not see what grounds are there for saying he is not culpable. It will be open to the defence to argue that the new disclosure could do no harm because there had been a previous disclosure, the burden will be on the prosecution to prove otherwise, and it would be for the jury to decide whether the fact that there has been prior publication negates the prosecution's claim that a test of harm has been passed.
I am not sure how that can be true in relation to information given in confidence by foreign Governments. The White Paper rules out the argument of prior publication abroad, because that would be damaging in itself, so, for the purposes of the defence, we are dealing with a first publication and there could be no pleading along these lines.
My hon. Friend is right in the case of information that is supplied in confidence by a foreign Government—unless, of course, that information had already been published abroad, in which case it would not have been derived in this country and would not be official information. Perhaps my hon. Friend will study what I said at the beginning of my speech as it gives an example of some of the misconceptions which apply. He will find that that covers the point.
I turn now to what has been said about the discipline code for Crown servants. I believe that Mr. Des Wilson is the arch-priest of that doctrine. It has been said in some places that, to counteract the narrowing of section 2, which even Mr. Wilson has been forced to agree we are undertaking, we propose to extend discipline so that Crown servants will never be able to say anything about anything without risking dismissal. This is nonsense. As the White Paper explains, it will be necessary to make some changes to conduct rules to reflect the fact that section 2 has been replaced by a very much narrower law. In practice, the discipline code will continue to be applied much as it is at present. The clarifying changes that I am talking about, which will be needed, will be discussed in the usual way with the Civil Service trade unions.
Although the White Paper does not deal or purport to deal with freedom of information, I want to say a word on that subject. No Government have made so much official information available to the public or Parliament. I shall give one or two examples because at the moment this part of the case has not been brought effectively before the House. Let us take as an example the prison system in my Department, which is possibly the most difficult area with which the Home Office deals. We have opened up the prison system to a far greater extent in recent years than was ever done in the past. The media have been given much greater access to prisons.
Although I am not responsible for Scottish prisons, who would have thought it conceivable even a year or so ago that the media would have been admitted to a Scottish prison in the circumstances which enabled both main television news channels to carry extensive coverage last night? That would have been wholly inconceivable, but such things now happen because Government Departments are opening up and are making available to the public, direct and through the media, far greater areas of policy and administration than ever before.
We encourage boards of visitors to publish their annual reports, often to our embarrassment, but we specifically encourage it to happen. Every Department has similar initiatives to record. The Department of Education and Science has been publishing the reports of school inspectors since 1983. The Ministry of Defence has invited the press into sensitive establishments at Porton Down and Aldermaston. Who would have thought that that would have been possible under previous Labour and Conservative Governments? The Defence White Paper includes a mass of new information.
The Treasury now publishes its economic forecasts. The public expenditure White Paper has grown from a mere 170 pages in 1978 and is now a formidably informative document of 500 pages. To come to what some regard as the nub of the debate, my right hon. Friend the Prime Minister has given this House more information about the Security Service than any of her predecessors by far.
Perhaps it is inevitable that, like Tantalus, the representatives of the media should always be reaching out for the fruit which is just beyond their reach. I hope that they will accept and not neglect the huge increase in the harvest of information that is now available.
What extra information will be made available and accessible by the introduction of this White Paper, apart from the areas to which the right hon. Gentleman might refer, which will begin to be subject, in any case, to the civil law?
This is not a freedom of information White Paper and we do not propose to introduce a freedom of information Bill. I am simply stating as a matter of fact the outflow and the cornucopia of information from this Government on matters which all our predecessors would have thought should continue to be locked up. I foresee that that flow of increasing information, spreading ever outwards, will continue.
Perhaps we should step back from the detail for a moment to consider what difference the White Paper proposals will make. The answer is that almost all—the great bulk or—official information would cease to be protected by the criminal law. That is a huge change. Any critic of our proposals who does not start by recognising that fact is letting prejudice obscure judgment.
A great deal of the information which is no longer to be protected by the criminal law is of a minor kind and should never have been brought within the criminal law. However, some of it is highly sensitive material. Some of it, like the Budget proposals or the type of economic information which is protected specifically by the 1978 White Paper cannot be disclosed without the risk of some harm to the public interest, but we have decided that the degree of harm which disclosure of such information may entail is not enough to justify the use of the criminal law.
Anyone who has served in Government, and I hope every Member of the House, will accept that that is not and was not an easy decision, nor was it taken lightly. It amounts to an earthquake in Whitehall. We have set the threshold where it seemed to us it ought to be. We are now discussing the boundaries of a small territory within the total empire which needs continued protection. There may be disagreement about how we define that territory and what we call it, but the boundary disputes, important though they are, do not crucially affect the size of the territory or alter the basic fact of the huge change which we propose to bring about.
Some people are arguing that we are introducing harsh new powers over the information in this remaining protected territory. There has been some prattle in the press about censorship, and the word "draconian" springs rather too easily to the lips of the right hon. Member for Sparkbrook. Now that he has had time to read the White Paper, as opposed to press accounts of what it was going to contain, he can see that, even in this remaining protected territory, we are removing powers and liberalising definitions.
Of course we want the law to protect effectively the territory which we think should still be protected. We want a new law which will work, but we are actually making just two proposals which would extend the present law. The first is to make it an offence for a member or former member of the security and intelligence services to disclose information which purports to relate to security or intelligence. The reasons for this are set out in paragraphs 43 and 44 of the White Paper and have not drawn a great deal of comment.
The second is the proposal which I have already explained, which relates to why we believe that future legislation should protect any information relating to security or intelligence, defence or international relations which we provide in confidence to other Governments or international organisations.
Those two minor additions to the present law will apply to particular categories of information in particular circumstances. Every other move, even in the remaining territory which we believe should be protected, is in the direction of openness. I do not believe that anyone could seriously weigh those two marginal additions against the immense reductions which we propose in the scope of the present law. None could conclude that on balance we are extending or stiffening the law.
Parliament now has the best chance that it has ever had to put on the statute book a reasonable and effective new provision in place of section 2. I do not underestimate the difficulties, but I believe that success would bring a substantial reduction in the way that the criminal law bears on the media; an improvement in the reputation of the law, therefore better protection for information which has to be protected; and a gain in the quality of the workings of Government. We should not miss this chance. I hope and expect that this debate will take us another significant step towards reform.
I have never had the pleasure of reading one of the Home Secretary's spy novels. However, I feel this morning that I have had taste of his style and I think that he created the title for his next work of fiction—"An Earthquake in Whitehall".
I want to begin with the Home Secretary's analysis of these matters. We cannot discuss the White paper without examining in a little detail the Home Secretary's statement on 29 June. In my 24 years as a Member of this House, I have never known a ministerial statement which was at greater variance with the White Paper that it purported to describe. I must tell the Home Secretary that either by inadvertance or intention he did the same this morning.
The hon. Member for Lewes (Mr. Rathbone) asked the Home Secretary specifically about designation. The Home Secretary was explicitly and profoundly reassuring. He told his hon. Friend that designation was to be related to individuals. At which point a sigh of relief went round the House—at least among those hon. Members who have not read the White Paper, since the White Paper specifies groups. It is not possible to discuss these matters rationally if the Home Secretary does not answer questions with a degree of accuracy. That was the problem that the House faced a month ago.
Just one moment. The word "group" appears in the White Paper. As the Official Report will show, the Home Secretary said that it was limited to individuals.
The right hon. Gentleman is making a mountain out of a molehill. It is not possible to designate a group. Individuals must be designated. Individuals will be informed. There will not be a notice saying that that is a group which consists of such and such a category. Individuals will be designated and informed that they have been designated. That is the point.
I only wish that the Home Secretary had put that in his White Paper, paragraph 47 of which states:
groups whose duties necessarily involve extensive familiarity with the work of the security and intelligence services
will be designated. The Home Secretary cannot say that his reply is consistent with what appears in the public text; nor were many of the things that he said in his statement on 29 June.
The Home Secretary rather foolishly said a moment ago that now that I have had an opportunity to read the White Paper, I may have a different view from that which I took on the day of the statement. He will recall that, thanks to his courtesy, I had an opportunity to read the White Paper during the morning of 29 June. He will also recall that other hon. Members were given a similar opportunity.
I hope that the Home Secretary will also recall that, with the exception of the right hon. Member for Tweeddale, Ettrick and Lauderdale (Mr. Steel), every hon. Member who had read the White Paper disputed the Home Secretary's description of it in his statement to the House. They disputed the notion that the White Paper dispelled the idea that the criminal law is being used to protect information simply because its disclosure would embarrass the Government.
The right hon. Member for Plymouth, Devonport (Dr. Owen)—who had read the White Paper—referred to paragraph 61 which rejected the idea that Crown servants prosecuted under the new Act could offer public interest as a defence and said that because that idea was not included, the White Paper was crucially flawed. The hon. Member for Thanet, South (Mr. Aitken)—who also had read the White Paper—urged other hon. Members to read it closely. He said that anyone who had read it would realise that it contained grave defects. The hon. Member for Aldridge-Brownhills (Mr. Shepherd)—who had read the White Paper—told the Home Secretary as I have told him this morning:
the balance of his remarks is confounded by any reading of that paper.
The hon. Gentleman was referring to the White Paper. All those hon. Members disagreed, as I disagree, with the Home Secretary's key passage then and the tone of his speech today, that
The scope of the legislation would be confined to the very small amount of information that it is in the whole nation's interest to keep secret."—[Official Report, 29 June 1988; Vol. 136, c. 365–71.]
Of course the White Paper proposals will release a huge area of Government information from the absurdities of section 2 of the Official Secrets Act 1911. However, in the areas where open and honest government are tested, the same old illiberal rules still apply, some with greater force and fewer safeguards. I believe that that can be demonstrated notwithstanding what the Home Secretary has said today.
The Home Secretary said that there is no blanket rule which requires any group or individual to remain silent on whole ranges of subjects. He based that assertion on a new concept which, as far as I can see, does not appear in the White Paper. That concept is "without authority". If the Home Secretary can tell me where that concept applies and where it is specified in the White Paper, I will gladly give way.
There are passages in the White Paper which, according to any moderate understanding of the English language, convey the opposite impression. There are categories where a blanket rule applies automatically and where the criminal sanction is automatically triggered simply by the giving out of information.
I will help the Home Secretary by quoting from the White Paper. Paragraph 38 states:
The Government does not now propose that new legislation should make all such disclosures an offence."—
Bravo. It continues:
It proposes instead that legislation should make a distinction between disclosures by members and former members of the security and intelligence services and disclosures by other persons; and that, in the latter case, the prosecution should have to show that the disclosure was likely to damage the operation of the security or intelligence services.
That does not apply in the former case. In that case, when officers or ex-officers of the security services, disclose information, the rule is absolute. The criminal sanction is automatic. There is no discretion or concept of "without authority". Exactly the same rule applies in paragraph 53. I must explain to the Home Secretary, because this is more important than his strange contextual errors, that even were the concept of "without authority" to apply, it would still make the proposed Bill unacceptable. We are arguing against the notion that the Government can decide by certification or other means what should and should not be published. "Without authority" means that it may be done if the Government agree.
In a moment.
The Home Secretary is nodding. If he means that it may be done if the Government agree, he must understand that that is philosophically no different from certification. It is a negative form of certification and there is no philosophical difference between the two systems. I now give way to the Commissioner.
The right hon. Gentleman must accept that he is on to a completely false point in suggesting that the concept of a distinction between authorised and unauthorised disclosure has no previous existence and cannot be found here. It has always existed in the law. If the right hon. Gentleman would care, for example, to consider paragraph 14 of the White Paper, he would see that it states:
The central concern of any reform of section 2 is to determine in what circumstances the unauthorised disclosure of official information should be criminal.
That makes it absolutely clear that the concept of authorisation as limiting the scope of the operation of the criminal law, even where it would otherwise extend, has been part of the law and will continue to be so.
The right hon. and learned Gentleman did not follow my point. Perhaps his mind is on other matters. The point is clear. If it is to be said that the security services are allowed to publish information with the Government's authorisation, we cannot rely any longer on the publicity about juries deciding and the matter not being in the Government's hands. The Government decide on individual cases. They decide yes or no. I do not disagree with the right hon. and learned Gentleman that that has been the habit in the past, but the Home Seceretary claims that there should be a different habit in the future based on something more liberal and rational. Based on the Government's agreement and fiat, that makes it a system of certification by another name. The Government cannot deny that and nor has the Home Secretary done anything to disprove it.
Under paragraph 43, it is a criminal offence for any member of the security or intelligence services, past or present—or, under paragraph 45, anyone or group designated by a Minister as associated or in frequent contact with the security services—to say anything about security no matter how trivial, how true or how necessary in the public interest. If we say, "Don't worry about that because things which are right in the public interest, already known abroad or likely to cause no damage and which should be in the public weal, will be authorised," the Minister who replies had better tell me whether, under the new legislation, the publication of "Spycatcher" or Mr. Clive Ponting's revelation of the truth or what Miss Cathy Massiter said about the operation of the service would be authorised. Of course it would not. We are back in the old system under a liberal guise.
Many media reports, including a programme broadcast by the BBC at 2 pm yesterday, have announced that the new dawn prepared by the Home Secretary will result in the scrutiny by juries of all information published, if there is any dispute about its propriety. They have suggested that juries will decide whether publication has damaged the public interest. That is clearly not the case in the areas where there are likely to be disputes, where the arguments about publication are most important, and where the Government's illiberality is most often demonstrated. It becomes a criminal offence for intelligence and security personnel to say anything about intelligence or security. The power of ministerial designation, about which the Home Secretary did not reassure me this morning, allows the rule of absolute silence to be extended far beyond the bounds of the security services themselves.
I believe that my right hon. Friend was in the House when the former Labour Member for Morpeth was prosecuted. Part of that trial was held in secret and part of it in public. To this day, hon. Members do not know whether he was prosecuted for giving away defence secrets or for disclosing commercial secrets. My suspicion is that his acquittal was due to the fact that there was a commercial issue involved. At that time, we thought that it was a most harsh decision to prosecute him. We never knew, and we still do not know, the facts of the case, which endorses my right hon. Friend's point. There should be more openness in that respect.
We all agree with that. Another example that has been brought to the attention of the House is one about which the Home Secretary or his junior Minister may care to speculate when replying to the debate. From time to time, we hear allegations—no more—that illegal phone taps are perpetrated by junior members of the security services. That was alleged in "Spycatcher", and it was alleged by Mr. Anthony Cavendish. It was alleged that some phone taps were applied to Members of the House. If an honest and honourable member of the security service discovers that that is happening, he is, as the Home Secretary states, entitled to go to his superior and say, "You shouldn't do that." If his superior is a man about whom he has doubts, he is entitled to go to a designated officer and say. "I am very worried about the illegality, criminality and treason that is being committed by the service". However, if he does not trust even the designated officer—
—or whoever it is that the Home Secretary thinks is in that position of trust and responsibility, and who the honourable man may believe is party to the illegality, and if he makes public the fact that the right hon. Mr. A or the hon. Mrs. B has had his or her phone tapped, is he not committing a criminal offence? The Home Secretary seems to be shaking his head.
I must correct the right hon. Gentleman's confusion about the staff counsellor. He is not of course a member of the security service.
I thought that the Home Secretary wanted to make a serious point. Let me ask him again. If the man about whom I have just hypothesised says, "This right hon. Member is having his phone tapped and I propose making that scandal public," will he not automatically be committing a criminal offence, for which there is no defence on grounds of honesty, decency, openness, justice or public interest? The Home Secretary does not answer the serious question. The answer to the serious question shows that in those areas where it ought to be right and proper for a member of the service to expose what is going on, the so-called liberal proposals that the Home Secretary puts before the House will automatically make that officer, without any qualification, subject to criminal prosecution and a period of imprisonment.
As a member of the NCU who has worked extensively in telephone exchanges, I can give my right hon. Friend the answer to his question. If an intercept is found, the person finding it will have no knowledge of who put it on. He may take the matter to his superior officer, who if necessary will refer him to the designated officer within the service. That officer is not a staff counsellor in the context given by the Home Secretary. The person finding the tap is not allowed to remove it unless he is instructed to do so. He will have no knowledge of whether a warrant was granted to put that tap on in the first place.
I am grateful to my hon. Friend. Although the Home Secretary remains silent—I had put to him what I thought was not a rhetorical question—I hope that when the junior Minister replies, he will address that point directly and explicity. That example seems to be at the heart of all that we are complaining about and of all that is wrong with the White Paper.
Assuming that an officer has taken to the staff counsellor a complaint or a potential allegation that his colleagues or superiors are subverting the elected Government, what will the staff counsellor do? He will surely attempt to check whether there is any substance to it. If there are people in the security services willing to subvert a duly elected Government, the very life of any individual seeking to expose that particular plot would surely be at risk. There must be a longer stop than the staff counsellor in cases of high treason.
The long stop ought to have the right to publish the information and to defend the right to publish it, and the propriety of doing so, in court.
I move forward as speedily as I can to allow other hon. Members time to enter the debate.
No, I must go on, I have given way too much for the convenience of the House.
I reiterate that the two rules of automatic criminal sanction against officers nominated by the Government whenever they speak about matters relating to intelligence or security, and against any civil servant who reveals confidential information to a foreign power, are wrong in principle. They give the Government the right to maintain total silence in areas where more frankness is desperately needed. The Home Secretary misunderstands the whole philosophy of the argument if he imagines that he can defend the Government's position by saying, "See how much information of our choice and to our convenience we have chosen to give out." This argument is about whether the people and the courts of this country have the right to decide about disclosure of information that is not to the Government's convenience. That is the real principle, and it is intensely important in the record of this Government—which I thought the Home Secretary was pretty reckless to introduce into the debate.
No, I have said that I must make progress. I cannot give way even for the hon. Gentleman.
Yes, but not for the reason that he thinks.
It is particularly necessary to provide the added safeguard and a law that allows for openness to this Government on account of their record of wishing to maintain total secrecy with a determination that amounts to obsession. It is this Government who have unscrupulously used the courts to pursue cases that they knew they could not win, but which they knew that by expending enormous amounts of public money they could keep going for so long that they would damage at least the financial interests of the security officers they wished to pursue.
It is this Government who have prosecuted with mixed success civil servants who acted out of conscience in making public information that they knew was of no benefit to an enemy or potential enemy but they thought should not be kept secret. It is this Government who raided the BBC's Scottish studios, confiscated films, and then returned them without prosecution, explanation or apology. It is this Government who prohibited the publication of Anthony Cavendish's little booklet alleging Security Service treason against the Administration of the right hon. Member for Old Bexley and Sidcup (Mr. Heath). I do not believe that the power to control information that is not likely to damage the national interest should be available to any Government, but certainly it ought not to be available to a Government having that sort of record of suppressing inconvenient information and of suppressing information that is in no way damaging to the national interest, but which the Government or the Prime Minister think ought to be suppressed.
The heart of the matter and the central issue that we are debating is the need, with any new law concerning official secrets, to take a rational and democratic view of the Security Service's operations. At present, the service acts either like a private army or like the private property of the Prime Minister. In other democracies, the activities of the security services come under the general supervision of Parliament. That rule should apply here. Until it does, the whole nexus between the wrong sort of secrecy and the wrong sort of activity will never be properly exposed.
Until that happens, it is intolerable that everything done by the security services—good or bad, legal or illegal, trivial or significant, in or against the public interest—should be cloaked in secrecy according to the fiat of the Government. But that is what the White Paper provides, and that is why the editor of The Observer—who knows about such matters, as he has been pursued by the Government—regards the proposed Act as in many ways worse than what it seeks to replace. For it specifically rules out—and what the Home Secretary says does not alter my view for a moment—some of the protections provided by the present law. I have no doubt that the defendant's protection of the public interest defence will be removed.
The Home Secretary says that no such defence exists. The fact is, however, that juries have acted on the belief that it does, or on the conviction that it should. Men and women have been acquitted on the belief that what they did was in the public interest. Let us assume that all that that reveals is that the present law is ambiguous, and that liberal-minded juries have chosen to interpret it in a certain way. What the Home Secretary now proposes is explicitly to remove that protection, so that juries will have no doubt in their minds in future. They will be directed that there is no such thing as a public interest defence; that loophole will be closed.
When I asked the Home Secretary a month ago whether various notorious prosecutions under the present Government—that of Mr. Ponting in particular—would have led under the proposed Act to an acquittal or a conviction, there was a roar of "Conviction" from his hon. Friends. Of course Ponting would have been convicted, because the White Paper rules out the concept of public interest and leaves that option no longer open to the Government.
Nor do I believe that the protection of prior publication will be protection that it is today. Let us again take the "Spycatcher" case. What would be the application of the new law to that? As I understand it, there is virtually no new information in "Spycatcher". There is certainly none of significance, and none that the Soviet Union does not already possess. Nevertheless, the Prime Minister has said from the Dispatch Box, in all our hearing, that whether the information is known does not matter. Prior publication is not the issue; it is security information. Would "Spycatcher" be released under the new legislation, as it should be, or would we continue to operate the principle that is so objectionable concerning all illiberal views on information? The Government's objection is not to information being made available to enemies or potential enemies of the state, but to its being made available to the people of this country. Much of the new legislation, like that which it is likely to replace, is intended to keep information not from enemies but from the British people.
Let me make it clear that I want to keep secret material that even might be of real benefit to an enemy or potential enemy. The House, I believe, is unanimous in that desire. But the Zircon issue, for instance, was brought to fever pitch and generated ministerial hysteria not because it would reveal anything to the Soviet Union, but because it might lead our friends and allies in the United States to believe that we did not have the grip on the security services that they expected of us. That does not strike me as a justification for an illiberal Official Secrets Act.
The proposed Act contains almost all the unhappy and unacceptable ingredients of the old Act, and the Act that the Home Secretary canvassed before his statement and then—consciously and with dramatic effect—announced that he would not apply: the Act that includes certification. The objection to certification is that it gives Governments and Ministers the right to designate individual pieces of information that can or cannot be published. What the White Paper now proposes is mass certification: the Government have the right to say that a certain category of persons is not allowed to publish. In the White Paper, they specify certain categories of information—information obtained in confidence from a foreign power; information related to defence matters, in some cases; and information concerning intelligence security.
The Home Secretary says—and his predecessor seemed to support him—that the Government would occasionally allow discretion, and that in his grace and favour a Home Secretary will read a book and then say that he does not mind its being published. I do not see how that can logically be separated from the idea of certification. If a Minister is to say, "This will not be tested in the courts: bring it to me and I will tell you whether it can be published", that is certification in all but name.
In all the Home Secretary's pronouncements—in his statement on the White Paper and in his speech today—he has made much of the need to remove from official secrets legislation matters of no danger or strategic significance. He wants us to concede that that has been done. Of course, in a sense I concede it willingly. I recall that in the January debate the Home Secretary scoffed, I thought rather artificially, at the absurdity of prosecuting—I quote his words exactly—
civil servants who disclose the colour of the carpets in their offices or what was on the menu in the staff canteen."—[Official Report, 15 January 1988; Vol. 125, c. 581.]
Clearly such information is no longer subject to legal prosecution, and it is no doubt enormously gratifying to newspapers that wish to write about ministerial carpets and staff canteen menus that they can now do so with impunity. But, as he scoffed at the idea of such matters being considered under section 2, the Home Secretary went on to say that they are not subject to prosecution now. Many of the categories that he has said will no longer be subject to prosecution have not been subject to it in any case.
The idea that much sensitive Budget information can be published without any prosecution is one of which I need to be convinced. I was looking at the other legislation surrounding such matters—laws regarding trade statistics, confidentiality of business information and the exchange rate, with which I was once concerned in passing. Are we being told that the matters that the Chancellor discusses in purdah, or semi-purdah—purdah apart from information that it is authorised to leak—are not protected by any law? Or is it simply that the legal obligation to silence has been removed from the Official Secrets Act and applies with equal force elsewhere?
The attitude that has characterised the Opposition throughout the debate is our wish to see a tight, positive and effective control on information which, if published, might damage the interests of the country. But the White Paper goes much further. It suppresses what ought to be in the public domain. That is why we shall vote against the Bill unless it is radically altered. If it were only more like the Bill that the Home Secretary pretended would come about when he introduced the White Paper, and less like the White Paper, we might vote for it.
Listening to the speech of the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), I could not help feeling that the disappointment that he showed when the Home Secretary made his statement had spilled over into this debate—disappointment that the draconian measures that he imagined would be introduced were not in the White Paper. Finding that they are not in the White Paper, he has had to spin a spurious web to try to persuade the House that the White Paper is not as it is. He has been wholly unsuccessful, and has simply brought about a series of misconceived red herrings.
Take, for example, authorisation, of which the right hon. Member for Sparkbrook has made such heavy weather. He is entirely wrong about that. The object of the exercise, following the recommendations of the Franks committee to reform the official secrets legislation, was to narrow the areas where disclosure would attract the sanctions of the criminal law. Over and above that, any conceivable reform must make it plain that other areas of the law would still be covered by the official secrets legislation and that disclosure would be a criminal offence. The Government must be able to prevent memoirs being published. It is a complete red herring for the right hon. Member to pretend that there is anything novel in that concept. For him to obscure that simple concept with the concept of ministerial certification is, at best, disingenuous and, at worst, something much more serious.
The ministerial certification concept is wholly different from authorisation. It is that, in the case of a prosecution brought before the courts in the ordinary way, where there is a specific issue that the court has to determine, the existence of a ministerial certificate shall be final and conclusive. That is quite different from the authorisation of material that is outside the realm of what is permitted by the criminal law. The right hon. Gentleman should see that distinction. I am surprised that he does not.
The White Paper amounts to a substantial liberalisation of the law. The right hon. Gentleman did less than justice to himself in his concluding remarks about Budget secrets. They were full of dark hints. He suggested that., although Budget secrets may not be covered by this legislation, something else, somewhere, is being introduced to cover that loophole. There is no truth in that suggestion. This is about the reform of the official secrets legislation. If the right hon. Gentleman has in mind other legislation that he thinks ought to be changed, he owes it to the House to say exactly what it is. But he has done nothing of the kind.
I am not talking about new legislation, darkly hinted at, or about Budget secrets that should be made available before the Budget. I am in favour of Budget secrets being kept secret, but I am not in favour of the Home Secretary pretending that they will not be kept secret when I think they will.
It will not do for the right hon. Gentleman to make dark hints about unspecified legislation. If the right hon. Gentleman is making hints about future legislation, the House is entitled to know what those hints are. If it is existing legislation, it should be identified. The right hon. Gentleman has demeaned himself by doing neither.
The legislation envisaged by my right hon. Friend the Home Secretary amounts to a substantial liberalisation of the law, but that does not imply that it is perfect, as I shall seek to show. I have criticisms and comments to make.
This legisation is well on the way to securing an objective that has been accepted in principle but that has eluded Governments for many years: effective protection for information, the disclosure of which would damage the national interest, while at the same time removing the cloak of the criminal law from a welter of information that might be embarrassing if disclosed but that is not contrary to the national interest.
Some of those who opposed suggested reforms in the past were genuinely unhappy with the proposals, but others preferred unworkable legislation. They hoped either that it could not be enforced or that a jury would not convict because the legislation had been discredited. Intellectually, that is a shoddy approach to the problem, although it did much to impede previous attempts at reform. This attempt has deservedly received a better reception than its predecessors. It is a better scheme than that put forward in the 1979 Bill, and I congratulate my right hon. Friend the Home Secretary on it. The proposals are ingenious and constructive, especially the way in which the problem of ministerial certification has been resolved by abolishing it altogether.
The extent of the liberalisation has not been fully appreciated. There has been a reduction in the number of categories covered by the criminal law. Furthermore, the requirement that the specific harm set out in the White Paper has to be proved will not make it at all easy to secure convictions, except in the clearest cases.
Paragraph 49 of the White Paper deals with defence. It proposes that the prosecution should be obliged to prove
that the disclosure was likely either to prejudice the capability of the armed forces to carry out any of their defence tasks, or to lead to a risk of loss of life, injury to personnel or damage to equipment or installations, or to prejudice dealings between the Government and the government of another state or an international organisation.
It is not difficult to see that an ingenious defence would be able to use those words to show that the prosecution had not made out its case, except in the clearest possible cases of damaging disclosure.
However, there is still scope for considerable discussion of what the definitions of specific harm in the various areas should be and the circumstances in which it is appropriate for no harm test to be required. I have three points to make about that. The first relates to paragraph 49 on defence and paragraph 50 on international relations. The specific harm that the Government have to prove is that disclosure would prejudice dealings between the Government and the Government of another state or an international organisation. The comparable paragraph in the 1979 Bill used language that required proof of serious injury. The difference is important.
Generally, the specific harm that the Government have to prove in this White Paper is meant to be less vague and more specific than the present legislative provisions. The justification of the approach of abandoning specification and setting out, with limited exceptions, the specific harm that has to be proved is to require something more concrete that is fit to come before a jury. I could understand something that was more specific, but to confine the prosecution to having to prove that the material that is disclosed merely prejudices dealings is a test as vague as the requirement of serious harm. It is also more restrictive. It would be easier to prove that the material that is disclosed prejudices something than that it does serious harm. As at present advised, I do not see any justification for what amounts to a tightening up of proposals that were originally put forward in 1979.
The second point to which I should like to draw attention relates to an important ambiguity that needs to be cleared up about paragraphs 41 and 42 of the White Paper, in which it is said that in the case of disclosure by members or former members of the security and intelligence services there will be no need to prove any specific harm. That is the distinction between disclosures by members or former members of the security and intelligence services and disclosures by others. But what about disclosures by newspapers of material emanating from members of the security and intelligence services? If the harm test were required in such a case, the law would undoubtedly be tighter, if enacted on the lines of the White Paper, than might have seemed apparent from a cursory reading of the White Paper. The paragraph refers simply to disclosure of information by members or former members of those services. It does not refer to information derived from disclosure by members or former members of those services. That is an important matter which needs to be clarified.
If no harm test is required, the law is tighter than it might have seemed. If the harm test is required, the total ban on the disclosure by officers of the security and intelligence services is considerably diluted. I have an open mind about what is right, but I think that it should be clarified before the House is invited to consider the matter further.
My third point relates to paragraph 51, which provides the blanket coverage of the criminal law on information obtained in confidence from other Governments or international organisations. In the case of such disclosure, the White Paper proposes that there should be no requirement for any specific harm test to be covered. I should be very surprised if the House were ultimately to be persuaded of the need for any such category, and certainly of the need for it to be covered by a blanket ban, there being no need to prove any harm.
Some of the information derived from other Governments and international organisations is, frankly, highly trivial. Some of the information derived from other Governments and international organisations in confidence is material which, under the law of those countries, it is not a crime to publish abroad. It seems to me excessively sweeping and unnecessary to contain paragraph 51, particularly when it is read in conjunction with paragraph 50—the paragraph on international relations—which already provides that it shall be a criminal offence if the Government can prove that
disclosure of information relating to international relations
will prejudice dealings between the Government and the Government of another state or an international organisation. If the disclosure of information communicated in confidence by such a Government or international organisation does any harm at all, it will not be difficult to prove that prejudice, and it is quite unnecessary to have the category in paragraph 51.
Those seem to be the real questions which must be asked and the potential blemishes which must be considered, rather than the spurious smokescreen which the right hon. Member for Sparkbrook erected. As for general public interest defence, I find myself persuaded by what my right hon. Friend the Home Secretary says. It seems to me irrelevant, with all due respect to my hon. Friend the Member for Thanet, South (Mr. Aitken), to say what the precise state of the law is as to the existence or otherwise of a public interest defence. It is plainly fairly ambiguous and uncertain. The right question to ask is whether such a defence is necessary and desirable.
The question has been circumvented by the Government's approach. They have said that they will require the prosecution to prove a specific harm except in certain other limited cases, and they will define that harm. The nature of the argument about public interest is circumscribed by the definition. The proper question is whether the definition is right or wrong. I have expressed, with regard to the use of the word "prejudice", my reservations about one respect of the definition. That seems to be the proper area for debate, rather than the general question whether public interest defences should apply. That seems to be addressing a question which has been removed by the wholly different intellectual concept of the White Paper.
The Government have made out their case in regard to the prior publication of disclosure. They have argued—in my view rightly—that whereas in many cases the fact that there has already been publication would enable the defence to show that the prosecution has not discharged the burden of establishing specific harm, there may be circumstances in which obscure, partial publication elsewhere does not mean that there is no harm by a more substantial or authoritative disclosure identified as coming from the intelligence services. The balance is right.
The most difficult question is whether there is justification for members of the intelligence and security services being under an absolute and lifelong ban from making disclosures without authority. I have come to the conclusion that that general principle—I stress the words "general principle"—is unexceptionable and correct. People who take on the job of working in the security and intelligence services know exactly what they are doing and the nature of the work they are undertaking. I think that it is reasonable that they should not generally be allowed to publish material without the risk of criminal prosecution.
If we are talking about historical material, there is and always has been provision for authorisation, contrary to the impression given by the right hon. Member for Sparkbrook. There is, however, something to be said for introducing an independent element in the procedure of vetting material for publication. There is also something to be said for no longer confining that process to the service. That is no reason why there should not be people of responsibility and authority from outside the service who could be involved in vetting material for publication.
Would my right hon. and learned Friend care to comment on whether former or serving intelligence service officers should have the right to plead inequity as a defence?
I was coming to that.
Finally, but most important, is the question what should happen if an intelligence officer discovers, or thinks that he has discovered, serious misconduct. Attention has been drawn to the fact that such a person can go to his superior, but attention has also been drawn to the existence of Sir Philip Woodfield's position as staff counsellor, to whom a person in such circumstances can turn.
The right hon. Member for Sparkbrook has not given sufficient weight to the novelty of this departure from previous practice and the importance of there being someone completely outside the service to whom an officer can turn. It is all very well for the right hon. Gentleman to say that an officer may not have confidence in such a person, but it is possible for an officer to have confidence in nobody. No Government can do more than provide a person of repute and integrity such as all who know him would testify Sir Philip Woodfield to be.
Perhaps the right hon. Gentleman would care to listen for a moment before intervening. I regard the present arrangement for a staff counsellor as something to be built on, not something that is wholly sufficient. It is essential that there should be something rather more substantial than this informal, ad hoc appointment. There should be a formally established and publicly announced—and explained—independent system within the public service for examining allegations of impropriety. Although such a system would have to operate in private, its existence could be announced publicly, as could details about it. That would do more than anything else to persuade Parliament that it is right to impose the sanctions of the criminal law for life on people in the security and intelligence services who are found guilty of unauthorised disclosure of material, whatever their motives and whatever the circumstances.
I am very glad to have the chance of following the right hon. and learned Member for Richmond, Yorks (Mr. Brittan). Many of us must have noted, particularly in view of the rumours published in the newspapers recently, how passionately he opposed the particular part of the Government's proposed legislation which might interfere with international communications. I hope that that does not mean that he has accepted the new job. Some of us consider that he was most ill-used during the Westland affair. I do not know whether he will take any advice from me on these matters, but my advice is: stick it out; she will not be there for ever.
One of the most excruciating moments ever reported to the House was when Sir Robert Armstrong allegedly went to the Prime Minister and reported, under the inquiry that he carried out, that someone in the right hon. and learned Gentleman's Department had been responsible for the leak. I have always thought that that must have been an amazing moment. The Prime Minister must have said, "No, not our Leon. He would not do anything without consulting me." I have always thought that we should have heard such a response from the Prime Minister at the time.
I hope that the right hon. and learned Gentleman will not depart, as we value his contribution to ensuring that we get a better Bill than the White Paper.
It would be a special irony indeed if at the end of this week, when, quite properly in my opinion, we have been asserting the supremacy of Parliament as vindicated and established in the 1688 and 1689 revolution, which I still believe was a glorious revolution, we should support a White Paper which involves the derogation from that supremacy of Parliament, particularly in the light of the large-scale misdemeanours of the secret service which have been revealed in recent years. If anyone claims that I am exaggerating, I commend them to the excellent article by Lord Hailsham, written soon after he left the position of Lord Chancellor. A few months ago, he wrote an article for The Independent, entitled
How the security services are bound by the rule of law.
I think that the headline may have been written by the excellent sub-editors of The Independent, but the article was written by the Lord Chancellor himself.
In that article he wrote that one of the reasons why the Bill of Rights had been passed and approved on such a scale—and one of the reasons why I am in favour of celebrating these matters—was the antics of James II, which he described as:
The ill-advised and illegal attempts by James II to evade the contraints of the doctrine.
In other words, James II was engaged in what might be described in modern times as spycatcher activities. In those days the very proper remedy of 1688 and 1689 was to reassert the power, authority and control of Parliament, in particular the House of Commons. That is what we should be doing this week, as my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) said at the end of his notable speech today. We really need to bring back the influence and the control of Parliament.
I presume that it is not discussed or even mentioned in the White Paper because the Prime Minister always lays down the rule that we cannot discuss the possibilities of parliamentary control, which is the normal way in which this country deals with grave misdemeanors. It cannot be applied here because, as the Prime Minister often says, the secret service must be kept secret, and that is the end of the matter.
I imagine that if any Minister were to dare to go along to any of the discussions on the Bill and say, "What about establishing some parliamentary control over this matter?" the whole question would be ruled out from the beginning. Some may say that it is because of the tradition of this country, although, as I said, Lord Hailsham accepts a different doctrine, announced in the article, that Parliament does have some control, and that when a Minister, an Attorney-General or a Home Secretary comes to the House and speaks from the Dispatch Box about how the secret service is operating, that in itself is an admission of parliamentary control. Even when in the usual circumstances, the Prime Minister, the Attorney-General or the Home Secretary says, "We cannot answer these questions because we do not answer security questions in public", Lord Hailsham's doctrine is different. He says that the fact that the Ministers have to come to the House means that they are answerable to the House, and therefore the House has the right and the duty to press the matter further so that we have some proper parliamentary control.
If it is said in 1988, of all years, that we cannot have proper parliamentary control, we should consider what happens in the United States of America. After the earth-shattering experiences on the other side of the Atlantic, I have not heard that the President of the United States is proposing to give up his secret service or to abandon having a secret service—nothing of the kind. However, in the past year, the affairs of the American secret service have been ransacked by Congress in more detail than almost ever before in history. There have been previous occasions, but on this occasion its investigations went further than ever before on a matter of supreme importance about which the Home Secretary and the Prime Minister ought to be paramountly concerned.
International terrorism is one of the appalling horrors of the modern age and how to deal with it is one of the questions that affects the operation of the secret service. That is one reason why Congress has insisted on all these matters being dragged out in public. They discovered that the secret agents of the American Government were engaged in actions with terrorists and were trying to make deals with terrorists quite contrary to all the professions that they had made to the world and which had been supported strongly by our own Prime Minister. Indeed, no one has been more passionate than she in saying how strongly she agrees with President Reagan when he denounces terrorism. But when the agents of President Reagan engage in activities to sell arms or to assist terrorists or terrorists regimes, and when all that is dragged out in the sight of the world, as it has been during the past few months, the Prime Minister is a little more reticent, and we have not heard exactly what she thinks about it.
I believe, and most sensible people would believe, that whatever it may mean to the American security services—although I think that it is better for them too—for American democracy and for the free world of which we are members, it is a very good thing it has all been brought out and that those infamies have not been tolerated.
I do not know whether other hon. Members feel as strongly as I do, but if it is true that it was absolutely essential for these misdemeanours, horrors, misdeeds and contemplated misdeeds to be brought out into the open by the action of the American Congress, I consider that a British parliamentary committee of some sort should have the power to do something similar. I am not saying that we should mimick or adopt the American methods. We have our own methods of establishing a parliamentary Committee to survey these matters.
In the light of all that has happened and all that has been revealed during the past few months, it is monstrous that today we should be presented with a White Paper which does not contain any proposal whatsoever for extending parliamentary control over such matters.
I now turn to a question about which I have had quite a lot of correspondence with the Prime Minister—the revelations in the book "Spycatcher". I am not saying that "Spycatcher" is a great book or a work of art. In many ways, I consider that it is a work of infamy and I certainly do not believe that many parts of it can be believed unless some corroborative evidence can be produced. I certainly think that the person responsible for writing that book was guilty of a gross breach of faith. not only to his obligations but to many of the people he attacked. It is scandalous that Sir Roger Hollis should be denounced, defamed and held up in history as a man who was a traitor to his country on evidence that has not been sifted at all. I know that we cannot protect the dead, but it is pretty thick that that should have happened. On one occasion the Prime Minister tried to repudiate it, but she should have carried it a bit further. If I had been a relation of Sir Roger Hollis I would have been outraged at what was done. A former prominent Conservative Member was the brother of Sir Roger Hollis and if he had been here he would have raised a storm about what was permitted by the Government.
Under the present arrangements there are listed leakages to particular journalists—to Chapman Pincher in particular. I do not know whether there will be a special Chapman Pincher clause in the Bill. Such a clause may say that as long as material is leaked to Chapman Pincher it will be all right and there will be no prosecution. Would the Chapman Pincher clause include a few other journalists as well because there seems to be some discrimination? I am sorry that none of the Law Officers are present because they are the people who are supposed to pick and choose between the Cavendishes and the Chapman Pinchers and would have to say who was to be prosecuted. This is an important matter.
I shall now come to what has been revealed and about which I had correspondence with the Prime Minister. I wrote to her about the so-called revelations in "Spycatcher" about the attempts to destabilise the Wilson Government, which was obviously the major matter, and asked if they were true or had any basis. But there was another series of revelations. If they are correct they raise questions of first-class importance to the existence and continuance of our democracy. They are questions about the allegations that the British secret service was preparing for the assassination of President Nasser. If it so engaged, that was serious, because if the attempt had succeeded the consequences for our country because of the reactions throughout the whole of the middle east would have been grave. Anybody who knows anything about the middle east knows the reputation that President Nasser had. I took that view about the consequences when I first read this tale about the British secret service having been engaged in these activities.
John Donaldson, now Lord Donaldson of Lymington, was not my favourite judge because I had a few brushes with him in times gone by. However, what he said about this matter is of great importance. He said that the so-called plan to assassinate President Nasser was
iniquity of a high order—a monstrous thing and a stain on this country's honour.
If somebody discovers that our secret service has engaged in such activities, what would be his obligation to reveal it under the present proposals? If there is a stain on our country's honour is some member of the secret service to say, "I must not take any steps to reveal that because I am bound by the same provision."
In the same discussion on these matters Lord Donaldson went on to speak about the absurdity of the doctrine that if the secret service was engaged in acts of such gross iniquity, that was all the more reason for matters to be suppressed. That is a very strange doctrine. Some of us take a simpler view. To introduce the idea that one must never reveal what would involve a stain on our country's honour is almost to introduce the Nuremburg concept that one must not reveal anything and does not have any obligation apart from a signed obligation to the state. As some hon. Members have said, juries have taken a similar view in previous cases. If Ministers have their way, that loophole will be closed. Juries have a somewhat different view from that of the Government about what is right and proper for the country to do, and this case is a clear example of that.
I wrote to the Prime Minister on two or three occasions asking whether she would be good enough to tell me whether she ever inquired into the accuracy of this case. I did that because she told the House on one occasion that she had had a new inquiry into the so-called destabilisation of the Wilson Government. On many occasions she spoke about the investigation initiated by my right hon. Friend who was the Member for Cardiff, South and Penarth. He did have an investigation, but I do not know whether it covered all these matters. The Prime Minister said in the letter to me, and told the House, that she had carried out a fresh investigation into these matters. Is that the case? Perhaps the Minister will tell us, but I doubt it because he would have to go and ask the Prime Minister and she would not be in too good a temper if the question were put to her point blank. If an investigation was carried out, did it cover the question which Lord Donaldson said:
involved iniquity of a high order—a monstrous thing"?
Will we be told by the Prime Minister that it happened a long time ago and we do not need inquiries into such things? Will she say that these are ancient matters, all gone and finished? Will she say that we must restore confidence in the present secret service and that those matters have nothing to do with today's affairs?
Things are very different with this Government. These matters are not out of date and are not ancient questions. They are as up to date, shall we say, as the shootings in Gibraltar. The secret service is involved in that. One of the most extraordinary developments in that connection was the precipitant way in which the Prime Minister told the House that she would not have any special inquiry and certainly no parliamentary inquiry. Right at the beginning my right hon. Friend the Leader of the Opposition sand that we must have an investigation because that was the best thing for Parliament, democracy and the secret service. The Prime Minister brushed all that aside. She said that she would not have an inquiry. She did not want Parliament interfering in any shape or form. She was landed with the much more difficult situation.
There will be an inquest at which nobody knows exactly who will appear or even how the evidence is to be taken. However the inquest goes, it will be very difficult for it to establish in the eyes of the world a full and proper judgment on the whole affair. That is especially so because one of the most scandalous aspects of the Gibraltar affair was what happened a few days later when the news was coming out. What happened a few days later can all be checked from the newspapers. Witnesses were brought forward as if they were witnesses of the event. When matters of that importance were published in the newspapers, a deluge of vilification and defamation was dished out against those witnesses or possible witnesses. Some of that deluge came from No. 10 Downing street.
If the Home Secretary disputes what I say he can look it up in the Sunday Times which, I suppose, is the most elevated section of the Murdoch press. The newspaper said that the material came from "higher sources". I do not think that it mentioned the No. 10 Downing street machine in that case, but that certainly came out. I do not know whether libel actions will be taken by those witnesses or about the chances that they would have in such actions.
We have the combination of a Prime Minister who says, "We will not have any investigation whatever on any parliamentary judgment on these events", and a highly suspicious Downing street machine that pours out material suitable to the Prime Minister. If it was poured out a way that was unsuitable to the Prime Minister its author would be unlikely to last very long. I have no hesitation in saying—neither did my right hon. Friend the Member for Sparkbrook—that the problems derive from the Government's behaviour.
We know that there are many problems that are not simple to solve. The Home Secretary said that he will settle the problems, but I do not believe that he has a chance of doing so if he does not secure the support of the House. If the right hon. Gentleman had wanted a settlement he should have given a much better welcome to the Protection of Official Information Bill introduced by his hon. Friend the minister for Aldridge—Brownhills (Mr. Shepherd) and to all the work that he has done since. The House and all those who believe in freedom of information owe the hon. Gentleman a debt of gratitude for the way in which he pursued his campaign. If the Government had any sense, they would have consulted him so as to achieve a Bill that would command the attention of the House. They will not do so by the proposals that they have presented.
I have no doubt that the relationship between the Prime Minister's Office and the nation is—I use the word deliberately—corrupt. I do not mean corrupt in the way that Malcolm Muggeridge used it. His definition of the word "corrupt" was when money passed. Favours pass between the Government machine, the No. 10 Downing street machine and the hugely elaborate Murdoch press, the power of which is far greater than that which a single newspaper proprietor should hold in a democratic society. The relationship between the Prime Minister's Office and those newspapers is evil and corrupt and the many problems will not be solved until the House has the courage to establish its own authority. It would be the best way of celebrating the revolution of 1688, which was important in the history of our country. Even what Lord Hailsham wrote about it was quite correct. It is necessary that the rule of law is established.
The Secretary of State for Foreign and Commonwealth Affairs, the Home Secretary or anybody else could not deny that over the past weeks and months we have heard accumulated evidence about how the secret services have defied and broken the rule of law with impunity. The Prime Minister has said, "There will be no parliamentary inquiry and we shall introduce a Bill that takes no account of these questions". If the Home Secretary makes himself a party to that, the Bill should be treated not only with opposition but derision.
The House holds that there are certain important liberties and rights consonant with democracy. Among them are freedom of speech and of the press. A democracy cannot identify itself as such without them. The protection of certain information in the interests of all our citizens is important. When we consider a change in the law about the protection of official information, we must try to strike a balance between those competing interests. It must be a substantial argument that gainsays freedom of speech or of the press. We need freedom of speech and of the press to identify the activities of Government. That is the only way in which we can hold them accountable. If we do not know what they are doing, how do we hold them accountable? In that spirit, one approaches the White Paper.
I have some sympathy with the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), who said he found it difficult to reconcile the words of my right hon. Friend the Home Secretary in his original introduction of the White Paper with some of the words that he used today. I shall give the reasons why I also have difficulty in that regard. If the Home Secretary were saying, "I shall approach the appropriate bull points as I can identify them, but nevertheless, caveat emptor," that would be perfectly reasonable. My right hon. Friend, however, went further than that, and I shall try to diagnose why we should be wary of any salesman—whether it be an insurance salesman or any other—who wants to identify the most marketable aspects of his proposals. It is my job, as the prospective purchaser of the White Paper, to identify omissions, absences or matters that are not in my interest.
The matter is approached by trying to identify two classes of information: those that are absolute—I know that my right hon. Friend backed away from the concept of absolute defences—and those that have a limited damage test, over which the prosecution would merely have to skip. I take to heart the remarks of my right hon. and learned Friend the Member for Richmond, Yorks (Mr. Brittan) that "prejudice" and "damage" are low-level words that do not pose a serious test to the prosecution when a penalty of up to two years' imprisonment is involved.
The first absolute category is paragraph 51 of the White Paper, which refers to paragraph 28 and makes slight reference to paragraphs 26 and 27. It relates to information obtained in confidence from Governments and international organisations. When the Home Secretary originally introduced this paragraph, he said that he did not expect to carry me with him and that I had raised an important but limited point. How limited or small is this point? There is little argument about why paragraph 51 is necessary.
In that paragraph, the Government say:
There is a wider damage to the standing of the United Kingdom in relation to all governments and international
organisations. For that reason any unauthorised disclosure is harmful, and the Government sees no purpose in setting a test of harm which is bound to be satisfied in every instance.
The sheer assertiveness of that is breathtaking. It lacks rational justification, or an attempt to discover in what way it should be limited or whether it is compatible with the rights of hon. Members, representing their constituents, to be able to hold the Government to account for proposals, measures or actions that they take in the name of the British people. That is what we are trying to examine.
The introduction of international organisations makes the scope of paragraph 51 enormous. No serious injury or damage test is to be applied. There is a pure assertion that everything nominated in this category is an absolute offence. I cannot understand the need for the comprehensiveness of the paragraph, and if one asks the Foreign Office to list or identify international organisations or activities that might lead to a punishment of up to two years' imprisonment, it grandly replies that it would "not be practicable" to tell the House of Commons.
"Not be practicable" to tell us what is a criminal offence or what may give rise to criminal behaviour? That is irresponsible, and if that is the spirit in which Whitehall approaches the matter—by announcing nostrums of such breathtaking wideness and saying that it cannot identify offences because it is not practicable—it is absurd. I agree entirely with my right hon. and learned Friend the Member for Richmond, Yorks that paragraph 51 should be dropped.
What does the paragraph do to journalists. It makes that which is lawful to report today unlawful to report after this measure is passed by the House. That aspect needs careful scrutiny. In a White Paper, I look for a balance between the overriding considerations of the need to protect certain information and the rights of free expression, for people to know information and for the press to print it. There is no balance. Journalists are referred to in paragraphs 54 and 64, and there is almost no way out of the liability of disclosure of provisions. In paragraph 54, the Government assert:
The Government accordingly proposes that the unauthorised disclosure by any person of information in the specified categories"—
hon. Members should remember that the specified categories contain no damage test—
in circumstances where harm is likely to be caused should be an offence.
Paragraph 55 says:
it would not be right to make disclosure criminal except where the discloser knows or can reasonably be expected to know that the disclosure would be likely to cause harm.
That might sound like a let-out, but the press cannot argue that it does not know that it is an absolute category. It is the law of the land and the press must be informed. It says, absolutely, that damage has taken place. Therefore, what argument can there be as to whether it has or has not taken place? It is an absolute assertion in law.
That is why there is some merit in what the right hon. Member for Sparkbrook said, in that one does not need ministerial certificates. We have done away with them. We have instructed the court that any release of information under that category is a crime. I am not legally qualified like the former Home Secretary, but a judge can instruct a jury as to the law. The question can be asked, "Did the offence take place within the category of information given in confidence by a foreign Government?" The answer is yes. The question then is, "What pleadings can be made?" The answer -is none. It is yes or no.
Where is the defence? We have ruled out the defence of prior publication, the fact that it has been previously available, and we have ruled out an iniquity defence. We do not need a ministerial certificate, because it has been asserted before a court. One cannot even look at the contention that there is damage, because no damage is required under that category. It has to be treated cautiously because it is closing down information that may be available to us today.
Let us look at the most sensitive type of information that the Government have a duty to protect and about which they are anxious. The Trevi agreement was leaked in The Independent. There was nothing outrageous in the document. It seems fairly sensible and contains nothing that one could not second-guess if one were a terrorist. I suppose it was information given in confidence between intergovernmental organisations—a phrase that would cover the Ghana cocoa marketing board. The information may have been leaked by an Italian or German Minister. I am not trying to say that a particular country is prone to such leaks. The information may be reported in Corriere Della Sera, Il Tempo or a Belgian newspaper, and a British journalist based in Milan may be asked to provide information on that for his newspaper. As I read the White Paper, he has no defence if he does so. He has committed an offence. It was information improperly disclosed, given in confidence between intergovernmental organisations, not necessarily Governments.
It is an outrageous category and it shows the spirit of those behind it, who did not try to weigh up what is appropriate in the great contest between our right to be able to express ourselves freely and the need to protect what we accept needs to be protected.
The second all-embracing category deals with security and intelligence matters and it is linked to interception. I want to deal with the quality of the arguments. There is an extraordinary argument in paragraph 53. I ask the House to reflect on the nature of people who put together arguments such as that. It makes its assertions, as we have come to expect from the White Paper and it says that no information obtained by means of interception can be disclosed without assisting terrorism or crime, damaging national security or
seriously breaching the privacy of private citizens.
What happens is that someone says, "My phone has been tapped. I am outraged and I want to tell the world." He would be told, "Oh no, you would commit an absolute offence because you would be invading your own privacy." The argument is contorted. Perhaps I have misread it and I am happy to give way to my right hon. Friend the Home Secretary if he will explain how I would breach my own privacy. That is one of the assertions made in the White Paper. That is why I ask the House to look cautiously at everything.
The section dealing with security services affects every Government because they are responsible for them.
If an individual thinks that his telephone is being tapped and wishes to make use of the Interception of Communications Act 1985, that could not be an offence under any circumstances because it does not involve official information.
If that is true, why does the White Paper make the assertion that to reveal such a thing would be damaging or would seriously breach the privacy of a private citizen? Perhaps I am misreading the White Paper?
The Government propose to make disclosure by members and former members of the security and intelligence services an absolute offence. That was a contention fought for by Sir Robert Armstrong in the High Court. It is worth remembering the words of Mr. Justice Scott in dealing with it:
Sir Robert would not accept that any freedom of speech or of publication should be permitted so as to allow any information about the Security Service to be discussed publicly by an insider. No question of balance between the proper requirements of national security, on the one hand, and of freedom of speech or of the press on the other hand, arose. I found myself unable to escape the reflection that the absolute protection of the Security Services that Sir Robert was contending for could not be achieved this side of the Iron Curtain.
That is what the Government propose to legislate to accomplish. We should see it off.
We have to look carefully at the relationship between the duties. The right hon. Member for Blaenau Gwent (Mr. Foot) identified that when dealing with iniquity. The learned judge went on:
It is not in dispute that Mr. Wright was under a duty of confidence by reason of his employment in MI5; nor is it in dispute that his duty continued after his resignation. The duty, if not contractual, is a duty recognised and imposed by equity, co-extensive with the duty that would have been imposed by implied term had the relationship been contractual. The breadth and duration of the duty that binds ex officers of MI5 depends, in my judgment, as does the breadth and duration of the duty of confidence in any other context, on all the circumstances of the case. The requirements of national security and the need for secrecy about the affairs of personnel of MI5 are of great weight indeed. But the breadth and duration of the duty cannot, nonetheless, be divorced from the circumstances of the particular case. Mr. Alexander"—
counsel representing the Government—
submitted that there was, where the duty of confidence of an ex-MI5 officer was concerned, no balance to be struck. The duty of confidence applied, he said, to all information, however apparently trivial and however much, by reason of disclosures made by others, the information might have become publicly known. I am unable to accept that such an extreme, absolute approach is correct.
This is the Government's extreme and absolute approach. Mr. Justice Scott continued:
The proposition may be tested by a number of examples, some more fanciful than others. Sir Percy Sillitoe's autobiography was published with the permission of the authorities. It contained information about the workings of MI5. Could it be argued that, notwithstanding the publication of the autobiography, other MI5 officers were under a duty not to disclose the information therein contained? I think not.
I accept that those are the personal views of a judge, expressed obiter dicta in court. If the authorities refuse to draw any line, they mistake the nature of the duty of confidence they seek to enforce. That says it all about the Government's approach. They do not try to draw any line, they include everything—the gold watch presented, the high crime of iniquity. What were the challenges of iniquity? They were the destabilisation of a legitimately elected British Government. That concerns every citizen. Every court that it has come before has accepted that that is so primary in a democracy that it could never be suppressed. In the Government's White Paper there is no intention that any such challenge should ever emerge into the public arena. There is also the contention that we tried
to assassinate the Head of another state. That was referred to by the right hon. Member for Blaenau Gwent. That would be a crime of infamy that would bring great shame upon this country.
Those are matters of major public policy, but the White Paper asserts that they should not be matters for us to discuss. It says that it would be improper and could cause damage. Damage to whom? The White Paper will damage us as a public forum and as a nation that is wedded to democracy. From 1688 to 1889, we required no official secrets Acts in the form we have and we rose to a great empire. In 1889 we introduced a public interest defence that information could be communicated to the authorities. In 1911 that was considerably watered down but still existed. In 1988 we are proposing that the public interest defence should go out of the window. We are proposing that prior publication should not be available.
The courts also had a view about prior publication, but I shall first quote again from Mr. Justice Scott:
Mr. Alexander submitted that the Government ought not to be exposed to the pressure and embarrassment that mischievous and untrue allegations by insiders might produce. I accept that pressure and embarrassment might follow upon the reporting of allegations of the sort I am considering. But there are two answers, in my view, to Mr. Alexander's point. The first is that the legitimate purpose of the duty of confidence imposed on members and ex-members of MI5 is to preserve the secrecy of MI5's affairs and thereby to enable it to operate efficiently. The purpose is not to save the Government of the day from pressure or embarrassment. Second, and more important, the ability of the press freely to report allegations of scandals in government is one of the bulwarks of our democratic society. It could not happen in totalitarian countries. If the price that has to be paid is the exposure of the government of the day to pressure or embarrassment when mischievous of false allegations are made, then, in my opinion, that price must be paid.
That is my opinion as well. We suffer some loss of confidentiality and of security because we are a democracy, but this is a very small price to pay when one weighs up the great splendour of the fact that we are a democracy.
The White Paper makes no reference to the lawful or proper duties of the security services and the intelligence gatherers at GCHQ. Those were set down in the Maxwell Fyfe declaration, and were clearly identified and big enough topics. The White Paper does not even try to focus an absolute form of protection onto those necessary activities that are lawfully identified by a former Home Secretary. I would have thought that that may have been a starting point, but if the Government's position is that, at the end of the day, there is a class of information, that, through understandable difficulties in proving the damage in court, would expose us to the risk of greater damage, perhaps the answer to that is the contrived one that came from my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn), a former Solicitor-General for Scotland. It is that, before a prosecution goes forward, where there is any suggestion that there is an abolute area—that is, no defence such as public interest, or prior publication can be raised—that should be looked at by an independent body.
In one respect, I do not go along with the argument of my right hon. and learned Friend the Member for Richmond, Yorks (Mr. Brittan), the former Home Secretary. That body could give the public the confidence that this is not a wilful, capricious or politically motivated or directed prosecution but one that has satisfied people of experience, who are independent of the Executive and secure, and who are confident, that the case has met what was originally in Franks, the serious injury test—not just no injury or an assumption of injury. This whole measure should be informed with the concept, right through it, that where we are proposing to send fellow citizens to prison, they must have caused a serious injury.
I genuinely believe, along the lines adopted by the right hon. Member for Plymouth, Devonport (Dr. Owen) that this White Paper is fatally flawed in the absence of the public interest defence. It is counter-productive to argue that information that is freely available around the world could lead to criminal prosecution and the possibility of imprisonment here in our country.
Order. Difficult as it may be to limit the time taken by speeches on a subject such as this, I make a strong appeal to hon. Members. There is a great deal of interest, and I hope to be able to call all hon. Members who wish to speak.
Section 2 of the Official Secrets Act 1911 deserves no more than a rapid cremation. Instead, we are having a requiem in which we are seeing created, as the section is laid to rest, a new and harsh successor to it. It is one that was falsely trailed by the Home Secretary in his statement, which bears little relation to the White Paper. The grief that we feel is not at the passing of section 2 but that what is offered is, first, so harsh and, secondly, so limited. It is limited in that it plays no part in the creation of a code of freedom of information. If there is one thing that could improve the image of our democracy for the public it would be to see through such a code that the Government are, at last, being made accountable and are being seen to be accountable.
The legislation that will repeal and replace section 2 should be no more than part of a much wider package. The motto of that package should be "Government are accountable". The Government have had nine years in which to produce new legislation. They have produced a reform so limited that they have wasted an opportunity. If Governments arc to be accountable, we must accept that the whistle must be blown and it should be heard to be blown when there is a scandal in Government that should be exposed in the public interest. The words of Mr. Justice Scott, quoted by the hon. Member for Aldridge-Brownhills (Mr. Shepherd) at great length, are words that demonstrate that members of the judiciary, at the highest level, believe that there must be room for the whistle to be blown on Government. Mr. Justice Scott would not—it would not be his style—use words such as "whistle-blowing", but he meant the same thing when he said that the press has a legitimate role in disclosing scandals in Government, and that open democratic society requires that that should be so. He said:
the ability of the press freely to report allegations of scandals in government is one of the bulwarks of our democratic society.
For that bulwark to mean anything, as Mr. Justice Scott pointed out, the press must be free and it must be free sometimes to report what are no more than allegations based upon reasonable suspicion and evidence. In that context, I shall return later to the question whether there
should be a public interest defence or what the hon. Member for Aldridge-Brownhills calls an "iniquity defence" which may be more accurate.
Some of the proposals are welcome. I welcome the restriction to six of the categories of protected information. I welcome anything that draws some of the draconian breath of a section 2 that was enacted in a panic and has been repented at great length. It is welcome that ministerial certificates are not to be the determining factor. However, we are presented with a new and insidious alternative to such certificates. It is described as designation. Designation wall be a flexible weapon in the hands of a Government. If we are ever unfortunate enough to have a truly unscrupulous Government, it will be an exceedingly flexible weapon. It is clearly open to abuse, as the very fact of designation will be protected, too. Therefore, the designated person will not be able to blow the whistle even to the extent of saying that he has been designated and, therefore, what comes from his category of work is designated. I suspect that the time may well come when every tight corner will be a designated area. The House should not be prepared to accept that when we come to scrutinise and debate the legislation.
With your injunction in mind, Madam Deputy Speaker, I shall now deal briefly with a number of the specifics in the White Paper. I agree with the proposition that there ought to be an obligation of absolute secrecy on public servants in the unusual category that has been discussed at great length in recent months. However, we must not simply close the door on public interest by such a categorisation.
As to security and intelligence disclosures by persons who are not members of the security services nor so designated, the White Paper says that the prosecution should have to prove either that disclosure was likely to damage the operation of the security or intelligence services—perhaps that is fair enough—or that the information concerned was of a class or description the disclosure of which would be likely to damage the operation of the services. I invite the Minister and his officials to look carefully at all the difficulties that class immunity has caused in the ordinary civil law, in tort actions, in actions under order 53 of the rules of the supreme court for judicial review—the fastest growing area of law in this country. It seems to me that to create a classification of that type is unduly harsh and will breed uncertainty. It is a classification that may well affect the freedom of the media and of authors such as Chapman Pincher and the hon. Member for Torbay (Mr. Allason) when the plume of his nom is in his hand.
As regards the disclosure of information relating to defence, it seems to me to be remarkably harsh and restrictive that the Government seek virtually to proscribe information that may prejudice dealings between the Government and Governments of another state or an international organisation. For example, if a British Government official came into possession of evidence in relation to the Iran-Contra scandal, surely it would be in the public interest that he should be able to reveal that information to a responsible journalist. That will not be possible if the proposals are enacted.
As for information obtained in confidence—not relating to security or defence matters—from other Governments or from international organisations, the consequences of that classification are quite absurd. It will be an offence if a Government official discloses anything about, for example, negotiations regarding air routes or international air travel insurance obligations, or even about consumer safety and matters such as the labelling of foodstuffs in Europe. Surely the Government cannot really mean to proscribe the revelation of such information. The White Paper appears to suggest that they do.
It is to be yet another absolute offence to disclose information whose disclosure would be likely to be useful in the commission of offences or to terrorists or in helping a prisoner to escape from custody. That would mean, for example, that the disclosure of certain details of a layout of a prison in the context of criticism of the conditions in hat establishment could be included, as those details might be likely to help an astute observer or reader of what is revealed to assist a prisoner to escape from that prison. Surely the Government cannot really be intending to enact legislation which would close down the legitimate comments of the press on such issues? The provision is absurdly wide. I give the Minister credit, and say no more than that the Government have simply not thought about such issues in the drafting of the White Paper. I agree wholeheartedly with the hon. Member for Aldridge-Brownhills when he refers to the fearsome nature of the proposals relating to the interception of cummunications. They mean that, although the Government chose not to prosecute Cathy Massiter, because they were rightly afraid of the reaction of the jury, she would now be prosecuted by the Government because she was committing an absolute offence. In the case, of an absolute offence, the judge might well be in a position actually to direct the jury to convict. There is an important difference between section 2, which did not enable the judge to direct the jury to convict in the Ponting case, and the proposals in the White Paper which, in my view, would enable the judge to direct and order the jury to convict. That would apply to someone such as Cathy Massiter.
That brings me directly to the public interest or iniquity defence. We have heard a most extraordinary new constitutional doctrine this morning which can be summarised in six words, "A perverse jury is your safeguard." The Government say, "We will not introduce an iniquity or public interest defence because we think it is inappropriate. We think that there is no need for it because of the liberalism of this White Paper", but, at the same time, the Home Secretary says, "We are leaving it to juries to decide." This contradiction is extraordinary.
Let us think for a moment of what happened in the Ponting case. The trial judge gave his directions on the law to the jury. He did not accept the proposition of the hon. Member for Thanet, South (Mr. Aitken) that there was a public interest defence. His directions to the jury were unequivocal. He told it that, in law, Mr. Ponting did not have a defence, but he was not able to go so far as to direct the jury to convict. The jury went out. It considered the judge's directions and what Mr. Ponting had done and said, "Not guilty." It said, "Not guilty" on one ground alone. It believed that it would be a monstrous injustice against the public interest to find Mr. Ponting guilty.
Such matters are to be left in the hands of juries, boasts the Home Secretary, but what will happen now? The judge may well have the power to direct the jury to convict, so it may not even retire to its room. It may sit in the court—I have seen juries directed to convict in much more trivial cases—and the court clerk will stand up and say, "Mr. foreman, on the direction of my Lord, do you find the defendent guilty?" On that occasion, the jury will have to show a new moral robustness and say, "No, we ignore the direction of the judge and we do not convict." What will happen then?
As a matter of jurisprudence and history, the jury's verdict is not binding. It is always accepted as binding, but, as a matter of strict law, it is a recommendation. Under the Government's proposals, what will happen? Will they expect the judge to say, "Thank you very much, members of the jury. I do not accept your verdict. This defendant is found guilty because that is the law." We are entering a new area where the Government are making themselves a hostage of the most extraordinary kind to a fortune upon which no citizen in a free and democratic society should have to rely—the fortune of having a robust and perverse jury.
There will always be a public interest defence, whether the Government like it or not, because the citizens of this country, even if they are vetted jurors, as in the Ponting case, will ensure that there is a public interest defence. It is absurd, stupid, unrealistic and self-demeaning of any Government of the United Kingdom not to recognise in legislation that that is so.
It is a pleasure to follow the hon. and learned Member for Montgomery (Mr. Carlile) who is always robust in his contributions to these debates. I wish to take up the central theme of his speech and of the speech of the right hon. Member for Blaenau Gwent (Mr. Foot)—the question of accountability.
The right hon. Gentleman said that Parliament must have influence in these matters. He is absolutely right. The question is how that influence may be attained. I am firmly of the opinion that that accountability arises, as it has always done in this Chamber, through the ministerial accountability of the Minister of the Crown to this Chamber and the duty to answer the questions that are put to him or her by the House. That is the accountability in which this country and this Parliament have traditionally believed. Whatever the interesting merits of the United States, or any other Western liberal democracy, the machinery of government in the United States is very different from that in the United Kingdom and the firmness of the accountability to this Chamber is the most desirable route.
Perhaps my hon. Friends will allow me to develop my theme a little further.
In the accountability argument, reference has been made to the possible involvement of a Select Committee of this House or to some special Select Committee procedure which could intervene between the role of the Minister and that of this House. I disagree with that and say so with the authority of having been the Chairman—indeed, I still am—of a Select Committee. I do not believe that the Select Committee procedure is the correct or proper vehicle for dealing with such matters. Accessibility to my right hon. Friend the Home Secretary, who has a particular responsibility in these matters, which is open to every right hon. and hon. Member, is the preferred route of accountability to that of the imprecise route of a Select Committee seeking to call evidence and examine issues of great complexity which go beyond the responsibility or role of a Select Committee.
How can my hon. Friend refer to the absolute high quality of accountability which reassures all hon. Members, when on 11 July an hon. Member asked an innocent and innocuous question of the Home Secretary,
whether he will issue a directive to the director general of MI6 setting out the parameters of lawful activity, along the lines of the Maxwell Fyfe directive of 24 September 1952, and if he will make a statement.
I would have thought that that was an innocent and innocuous question, but the standard answer came out:
It has been the long-established practice of this and previous Governments not to comment on such matters."—[Official Report, 11 July 1988; Vol. 137, c. 74.]
Is that really the accountability that we are asking for in this tercentenary year of 1988?
My hon. Friend knows perfectly well that that is not what I meant, nor is it what I said. I said that the form of accountability is through the Minister of the Crown to the Floor of the House. At the risk of taking more time than I should, I repeat that other methods are open to right hon. and hon. Members in the pursuance of their parliamentary duties. There is no finer or better method than that which this House has practised now for many centuries than the method of talking to the Minister who is responsible for those services and their day-to-day activities. We all know that that method is open to all of us. It is a most acceptable form of accountability and a most desirable way of dealing with these issues.
If the hon. and learned Gentleman will allow me, I must press on. Time is pressing and other hon. Members wish to speak and I wish to go on to other aspects of the White Paper.
There is no doubt that the 77-year-old section 2 of the Official Secrets Act has now outlived its time. It is right that the House should have the opportunity to replace it and generally to reform the law relating to official secrets. Had the former Labour Government introduced their proposals in 1978 and had those proposals become law, it is likely that today we would have been saying that the enactments of 1978 had proved totally unacceptable and that we want to repeal those measures. There is no doubt that we have advanced considerably since 1978. I daresay that we have advanced still further than the proposals of 1979 when this Government first began to tackle the nettle of how to reform the Official Secrets Act.
Without any hesitation, I can say that I believe that my right hon. Friend and the Government have produced a most acceptable set of proposals. Indeed, the fact that some of my hon. Friends are critical of them for being too liberal is perhaps an indication of how sucessful my right hon. Friend has been. Even those outside this place, in the media industry, who have the greatest financial and vested interest in seeking these matters viewed somewhat differently, have given the White Paper a generous and positive reception, while reserving some elements of criticism, which I may touch on in a moment. It is right to sweep away the measure that we are discussing. Instead, we want to introduce a tough but tightly defined law and it is that concept of definition that we should seek to achieve.
The White Paper proposals will cover six areas of information which it is in all our interests as a country to keep secret. As we know, those areas include defence, security and intelligence, diplomacy and information given in confidence by other Governments, official information helpful to criminals and the interception of telecommunications. All those areas of information will get legal protection. The White Paper will define those categories as strictly and accurately as possible.
With regard to the disclosures of information given in confidence to the United Kingdom by foreign Governments, I recognise the strength of the case put by my right hon. and learned Friend the Member for Richmond, Yorks (Mr. Brittan). That very issue goes to the heart of our relationships as a country with other countries, and especially with our allies. It is a difficult concept to get right. I advise my hon. Friend the Minister of State that, as we continue to contemplate the White Paper and prepare the Bill, which I hope will be introduced in the next Session, we should see whether it is possible to define the nature of that relationship a bit further. I suspect that we could do so without in any way damaging the importance of the relationship with our allies and other countries. If we could do so, we would in large measure reach an agreement across the House on a matter which is of great importance to the House.
When a case comes to court, the prosecution will inevitably have to prove to the jury not just that information in one of the special categories has been disclosed, but that that disclosure is actually damaging our national interests. It is important to prove that before a jury. It will be for the courts to decide whether the damage test has been met, not for a Minister. We have dropped the idea which was advocated in previous proposals that a certificate signed by a Minister, thus acting as judge, should be enough to prove that damage has been caused.
The special duty of lifelong confidentiality will continue to apply to members of the security services. People who join those services do so voluntarily. They do not have to seek employment within them. Even those rare and special members of the Civil Service, such as my right hon. Friend's principal private secretary who, by the very nature of the special duties that he has to perform with my right hon. Friend becomes privy to the work of the security and intelligence services, could, if he so wished, say to the establishments division of his Department prior to the appointment, "I would rather not take that office because of the binding obligation which will thus devolve upon me." There is a clear and positive statement of obligation. It is absolutely right that people who volunteer to serve the British Crown, the British state and the British people in those services should understand from the outset precisely what those obligations are. What could be clearer or better than that? I am sure that it makes sense.
It is as well to pay some sort of tribute to the work of those services. We have been debating the content of the White Paper, but we should remember that the work done by the people in those services is of exceptional value and that the very nature of it precludes it from being proclaimed from the front pages of the newspapers or on television programmes. Those services help and protect us daily from terrorism and foreign espionage.
Is it not extraordinary that we are unique in the world in that nothing may be written about security and intelligence yet last week Comte Alexandre de Marenches, who ran the French intelligence service for 11 years, published a book, and two CIA chiefs stationed in London have published books? There is a perfectly respectable mechanism in most other countries which allows such books to be written. Is my hon. Friend really saying that it is absolutely forbidden for everyone in this country to write about the security services and intelligence?
As my right hon. Friend the Home Secretary has already said, the publishers of memoirs or an academic in one of our universities who wants to write a book about the history of a recent international or military event may have access to material through a procedure which is well understood by my hon. Friend the Member for Torbay (Mr. Allason) and by hon. Members on both sides of the House. That procedure remains in place.
I want to comment briefly on the public interest defence, which has been discussed today. I do not believe that we should try to include the public interest defence in this legislation. That would create confusion rather than certainty in the law. The criminal law defines an offence in terms of an individual's actions, not his motives, for carrying them out. The latter may be taken into account by the judge in his summing up or when passing sentence and that may well affect the decision of the jury, but it should not be included in the law.
I have already dealt with special duties on the part of those who serve in the security and intelligence services. With regard to prior publication and the position of newspapers and the media industry, as I understand the White Paper, no one can be convicted of revealing information relating to security intelligence, defence or international relations unless the prosecution can prove that disclosure was likely to cause a specified harm to the public interest and that he or she who proclaimed it knew that. Nor can someone be convicted for disclosing information useful to criminals unless the prosecution could show that the information was still likely to be useful despite its prior publication. The defence of prior publication is therefore subsumed within the test of harm.
I also commend my right hon. Friend the Home Secretary on having the courage in the White Paper to drop the offence of receiving unauthorised information that is contained in the Official Secrets Act 1911. That point alone is a sign of the liberalisation of the proposal and is why the package as a whole, perhaps with that one area to deal with international affairs upon which I have but briefly touched, deserves the support of the House when a Bill is presented perhaps in the next Session of Parliament.
The debate has been valuable. The hon. Member for Westminster, North (Mr. Wheeler) referred to prior publication. I do not think that the paragraph in the White Paper about that is good enough. It states that the present position would not have existed in the Government's Freedom of Information Bill in 1979. There is no time to develop that argument. I raise the matter simply because I believe that the House needs more time to discuss this White Paper. Of course, Friday is a business day and we all know that hon. Members have engagements on Fridays. I have to attend a public meeting with my constituents on the Housing Bill later this afternoon.
However, so many of the points that I have heard today from the hon. Members for Aldridge-Brownhills (Mr. Shepherd), and for Westminster, North, and the hon. and learned Member for Montgomery (Mr. Carlile) need to be taken further if the Minister and the Government, when they produce legislation, want to get it right. Otherwise, they will not get it right.
I believe that the hon. Member for Westminster, North said that if a Labour Government had legislated, there would be complaints now. I am sure that he is right. The White Paper for which I was responsible does not meet all the points about which I am concerned now. To some degree that is inevitable. We should at least have a good shot at it this time and not leave all the bits hanging around in future. We should let more of our colleagues participate.
With regard to parliamentary accountability the time has come to have some way in which the Maxwell Fyfe rules—which are now well out of date—can be assessed. Are those rules, or something like them, the basis on which our security services work now? If there is anything in half the allegations that we hear, that cannot be true. I do not know whether those allegations are right. I have my opinions about Mr. Wright. I have no time for him; a great deal of what he has written is infamy and it was wrong that it should have been published. In that I agree with my right hon. Friend the Member for Blaenau Gwent (Mr. Foot). However, parts of what Mr. Wright revealed should have been published.
However, parliamentary accountability on the way in which the security services work is important. The time has come to consider the legalisation of the security services. They have no legal basis. In other countries, the services have such a basis, which I had not realised. That should be considered.
The role of the Attorney-General, and the public interest, should also be considered. There are proposals to cover that in the new legislation. As I understand it, the Attorney-General must decide on prosecution and whether that is in the public interest. There have been excellent Attorneys-General in all Governments over the years. However, the security side of things is not their strength. There is a tendency to believe too easily that it is in the public interest to do something or other.
We need more time to consider these matters. Unlike the hon. and learned Member for Montgomery, I am glad that we have not got a freedom of information Bill. Such a Bill would be far too long. We must make clear what will be prosecutable under the criminal law. Once that is clear, freedom of information will fall into place. To break the Official Secrets Act 1911 for a moment, I must state that I had a slight problem when in government. It is quite simple. We might have produced a Bill that was a hundred miles long, and it was not easy to operate with a minority of three, on the Franks committee. It is very important to clarify issues under the Official Secrets Act 1911, and it would help the new procedures.
The right hon. Gentleman asked for clarification about what is prosecutable. Does he not agree that that should be supplemented by the vital urgency of increased accountability by this place? That might lead him to agree that that means putting the specific contents of the Maxwell Fyfe directive into the new Bill as the parameter for the security services, coupled with the creation of a Select Committee consisting of Privy councillors on the supervision of the security services.
I am not sure about the Maxwell Fyfe rules. They do not stand up 30 years on. Something beyond them is necessary. We must discuss what a Select Committee would do and the nature of its report.
I was a member of the Franks committee. It produced a good report largely because of the experience and background of Lord Franks. That does not mean that everything that it said was right. I made changes in a White Paper in 1978 and this Government have made others. There is nothing wrong with the principle of change.
I had doubts about ministerial certificates. After I had held high office, I was absolutely sure that I had doubts about the accuracy and classification of a document. On the Franks committee, we questioned civil servants about the basis of the classification of documents and we were not much the wiser at the end of the day. The White Paper states:
Classification is still necessary for administrative purposes but is not relevant to any prosecutions.
I doubt that.
My experience in the Civil Service clearly showed me that classification is a function of the length of time since the last time that classifications were reviewed. What happens is that a civil servant thinking that there might be the slightest embarrassment as a result of marking a document "Confidential" will mark it "Highly confidential", and so on. Classification must be reviewed every two years; otherwise, everything is marked "Secret".
That is an interesting point, and it leads me to my next remark. If there were to be a jury trial, any perceptive lawyer would raise during the course of the proceedings the documents' classification. Time is of the greatest importance. I have some classified documents of no great importance, although I suppose they break some rule or another. After the lapse of all this time, they are not worth a light to anybody, but they were classified at the time. Anyway, I leave it alone—they are not frightfully important.
I shall show them to the hon. Gentleman, if only to convince him that his comments about classification are incorrect. My documents would be proof of that. The same applies to some of the documents about individuals that the security services have, concerning things that those individuals allegedly did 20 or 30 years ago, which places a question mark over them for the rest of their lives. If there is a case for reclassifying documents, there is a case for going through some of those lists and records of what somebody might have said in 1938.
From his reading of the White Paper, does the right hon. Gentleman not realise that the concept of classification plays no part in my right hon. Friend's proposals?
I did not say that. I said that I bet that any good lawyer would bring the question of the documents' classification into a trial, and for good reason. Mine was a sideways view, that in any event classification needs to be reviewed because it colours the situation in terms of the groups that the Home Secretary has dreamt up, which may have a lifelong application. If documents are to be classified "UK eyes only", and so on, that will colour the grouping in which they are placed. It is important to get the classification right.
The basis of my support for change is to be found in volume 1, section 119, of the Franks report, which stated:
We believe that most of those who have given evidence to us, and most reasonable people, would accept as a proper basis for the employment of criminal sanctions the unauthorised disclosure of official information which would be likely to cause serious injury to the security of the nation or the safety of the people.
that was the basis of the Franks report. Nobody—and I am not suggesting that the Government have done aught else—can call in aid the Franks report without having that at the top of the page—
serious injury to the security of the nation or the safety of the people.
The report goes on:
If criminal sanctions are justified at all, they are justified for this purpose. If they are to be reserved for what is most important, they should not go any wider. We are therefore adopting this as our touchstone.
We were not interested in anything that caused some injury but only that which was likely to cause "serious injury."
As to authorisation, I hope the Home Secretary will study chapter 2 of the Franks report. It was a very curious time of questioning when we dealt, for example, with self-authorisation by civil servants, which is to continue. Because it was not clear what self-authorisation meant, it was clear to the Franks committee that there was a great deal of power in the hands of senior civil servants as to what they might say.
The question of self-authorisation by politicians must be taken into account in any legislation. Most of the Prime Ministers of the past 30 years have authorised themselves, in writing books, to reveal matters which, if they were revealed by the group of people with whom the White Paper deals, could subject them to criminal proceedings under the new Act. Are Ministers included in that grouping or are they outside it? Will they have to sign a document when they become a Cabinet Minister as opposed to being a junior Minister? Will there be a difference between the two? The doctrine of self-authorisation is not clearly described in the White Paper.
I wanted the heading of authorisation to lead me to another point, and if I make it in a blunt way, it is to save time. No Official Secrets Act will stop me from pursuing the matter of dirty tricks by the secret services against Governments of any persuasion. It cannot be in the public interest, and cannot come under any classification, that one should not talk about such matters. That cannot be a secret that must be protected.
I have brought along one of the documents that I have collected, which is all about Ireland, and at the bottom of which appears my name and "Stan Orme" and "David Owen"—a trio of likely lads to have written such a document. It was put out by people working in the Government service, in league to some degree—not just. in Ireland but over here. Here is the document, and hon. Members may by all means take a look at it.
I would rather hang on to it for a moment.
The content of that document, with which my name and "David Owen" are associated, is absolute rubbish. That was done to denigrate members of Her Majesty's Opposition. I have more. The stuff must have been written by people with an honours CSE in politics. It is elemental rubbish, but somebody put it out to denigrate politicians. It was part of the dirty tricks set-up. I have two or three such documents. I have said that I think I know where they emanated from. What will be the situation under the new legislation? If I were to pursue that matter and try to get to the bottom of it, would I be breaking the law? I hope not, because it is not in the public interest to keep quiet about that sort of rubbish.
I may tell the House, in terms of one's own patriotism, that my father died a member of the Labour party as a result of the first world war. He would have been regarded as some kind of radical. I do not know that he read The Guardian, but he read things that, in the eyes of some people, were even worse. Yet such rubbish is written about us. I want to be absolutely sure that the new law will not prevent one from pursuing such matters.
The piece of paper that the right hon. Gentleman has been waving around so teasingly, but has not yet given to his hon. Friend the Member for Blaydon (Mr. McWilliam) or to me, does not on the face of it purport to be official information; it is information that has been circulated by someone who the right hon. Gentleman suspects may have been some kind of forger.
No. It is rubbish, but it is not a forgery. It was written and put out by people in the Government service, and it is a serious allegation.
On Saturday night I went on a programme—I did not know when I went that it would go on for half the night, but that is another matter—in which a man told us that he was a private investigator employed by MI5. I have obtained the film from the Library, and my hon. Friend the Member for Linlithgow (Mr. Dalyell) has seen it. What the man said was incredible. He alleged that people in the security services were no longer concerned—as they should be—with spying and terrorism, but were concerned with people who were protesting about the building of atomic power stations.
Would that man, who assured me—I shall pursue the matter—that he was employed by the security services, be breaking the new laws by revealing such information publicly?
Presumably he would have to give it to a parliamentarian, who could read the entire document in the House. It would then be covered by parliamentary privilege—which shows again how nonsensical the position would be.
I think that I have raised a good point. It is for the Government to answer. As the man was not a full-time employee, has he the right to go to the staff counsellor? He was paid on a contract basis; he has now been paid off with money in a brown envelope. It had to be money in a brown envelope, did it not?
I hope that we shall have time to discuss the major issues, such as accountability, that have been mentioned today. We need an Official Secrets Act to protect the nation's secrets, but we do not need to protect the secrecy of the Government. We need to replace section 2 on the basis of the principle laid down in the Franks report.
Unless they are careful, the Government will make the mistake that I suspect we were making in government. There needs to be much wider discussion than a White Paper, a Bill and discussions in Cabinet Sub-Committees. I do not believe that the White Paper in its present form will be the end of the story, and I hope that the Government will think again about a number of fundamental issues.
The principle is absolutely right. Far fewer criminal charges will arise than in the existing circumstances, but that of itself is not enough. I want to see the Franks principle in legislation. Serious injury to the nation is all that matters, and if what is revealed leads to a Government being uncomfortable, so be it. Half a dozen points in the White Paper need to be rethought, and I hope that the House can play a part in that.
I wholeheartedly agree with the right hon. Member for Morley and Leeds, South (Mr. Rees) that the White Paper should not be the end of the story, and that we should try to get closer to the Franks principle than at least some parts of the White Paper.
My right hon. Friend the Home Secretary struck a somewhat grandiose note in his opening speech when he described his White Paper as having the effect of an earthquake in Whitehall. The phrase reminded me of the award-winning entry for the world's dullest journalistic headline, "Small earthquake in Chile: not many dead". I think that this is a case of "Small earthquake in Whitehall: not many secrets liberalised".
I say that because many of the liberalisation proposals do no more than cut away the dead wood of catch-all secrets legislation in Government Departments whose secrets presented no threat to security in any event. Although we welcome the degree of liberalisation that has come about—for I do not wish to sound too churlish—it is very much an instance of mandarins yielding to the inevitable after some 20 years of pressures, proposals and counter-proposals.
My right hon. Friend the Home Secretary no doubt has had a difficult job in corralling all the permanent secretaries and persuading them that they must give up the handcuffs of the criminal law placed on their Departments' areas of so-called secrecy. I give him two cheers for doing a competent job, but at least three should be directed to my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), whose pioneering Private Member's Bill made it all possible.
That small earthquake in Whitehall is unsatisfactory. It has left at least two major citadels of unnecessary secrecy not merely standing but strengthened in a completely unacceptable way. The first of these citadels relates to paragraph 51 of the White Paper. It has already been savagely criticised by my right hon. and learned Friend the Member for Richmond, Yorks (Mr. Brittan), by my hon. Friend the Member for Aldridge-Brownhills and others.
The paragraph proposes an absolute criminal offence for disclosures relating to information obtained in confidence from other Governments or international organisations. I go further in my criticism than anybody else has yet gone and say that this paragraph of the White Paper is plain daft. Paragraph 51 could have been drawn up only by some old-fashioned, myopic, Carlton-Browne of the Foreign Office-type character who has spent so much of his life overseas that he seriously believes that foreigners' confidences need a higher degree of protection by our criminal law than Britain's own Budget secrets.
That element of Foreign Office farce has been heightened by the risible reply given to the parliamentary question tabled by my hon. Friend the Member for Aldridge-Brownhills. He asked for a list of the international organisations covered by paragraph 51 that creates all these new criminal offences, and he received the amazing answer on 12 July that it was not practicable to provide such a list. The answer did not go on to say whether it was not practicable because the list was too long, or too secret, or too ridiculous. Probably it was all three. It will not do. I urge the Government to drop this paragraph from the White Paper.
To be personal for a moment, if paragraph 51 were to become law it would represent the ultimate futility and failure of nearly 20 years of campaigning for section 2 of the Official Secrets Act 1911 to be reformed. The House may remember that when I was a young journalist I spent six weeks in the dock at the Old Bailey alongside the editor of the Sunday Telegraph. Our case had nothing to do with national security. It was about information that had been given in confidence to one of our diplomats by members of the then Nigerian military junta, although the most sensitive part of the information given in confidence related to the Nigerian army's inability to shoot straight or to fight battles after 5 o'clock in the afternoon.
According to paragraph 51 as it stands, the editor of the Sunday Telegraph and I would have committed an absolute criminal offence against which there would have been no defence, and we would still be languishing in Wormwood Scrubs. As I have criticised my right hon. Friend the Home Secretary so much, there may be moments when he thinks that that might not have been such a bad idea. In all seriousness, however, I hope that this paragraph will be thrown out of the window.
I am also worried about paragraphs 38 to 44 of the White Paper that deal with security and intelligence matters. Like all sensible people, I accept that there are some security and intelligence secrets, such as anti-terrorist operations, that must rightly be stringently protected by these legislative proposals and by section 1 of the Official Secrets Act 1911—a tough provision that is to be left completely intact by the new legislation. Certain paragraphs in the White Paper are completely over the top, and I think that I know the reason why.
This is the first ever Government White Paper that might be said to be haunted. The ghost of Peter Wright stalks through several of its pages and paragraphs. It has evidently frightened its authors into a veritable seizure of over-reaction and excessive authoritarianism. Whatever view one might take of the "Spycatcher" saga, we must remember that Parliament passes laws not just to crack hard cases or to take revenge for past events but to be fair to future generations and to the overwhelming majority of loyal and responsible security service employees. Like any other citizens, those who work in the secret world are entitled to some civil rights. Parliament cannot pass a law that effectively suspends Magna Carta for a certain category of Crown servants, just because Peter Wright once caused some embarrassment to Whitehall and Government Ministers.
Let me give some specific examples of how the proposals in paragraphs 38 to 44 of the White Paper make it an absolute offence for Government security officers, past or present, ever to say anything about their work. Let us consider, for example, the position of a current security service employee who is dissatisfied with an administrative ruling that affects his conditions of service, such as his pension, or an allegation of racial discrimination. Having gone through all the approved channels, including the staff counsellor, an employee may still feel that he has been treated unjustly and wants to see his Member of Parliament.
The right of access to a Member of Parliament is important for any citizen, but it is exceptionally important for people such as those who are employed in the security services, who are prohibited from joining a trade union. Under the White Paper, it is a criminal offence for a security service employee to go to his constituency Member of Parliament, because, when discussing his grievance, the officer will have to disclose to some limited information about his security service employment. I argue that the doctrine of absolute confidentiality for life—a new-fangled invention by the Government—does not extinguish all civil rights such as the right to access to parliamentary representatives.
We should reflect for a moment on the extraordinary brouhaha created by the Government about the BBC's series "My Country, Right or Wrong". It is a very good example of how the White Paper would work in practice, although the legal sanctions would be criminal and not civil. The House will recall that the BBC invited several former members of the security services, such as Lord Dacre and Mr. John Day, to contribute to its series of programmes, which they did. They recorded a number of comments, which were so anodyne as to be bordering on the tedious, as it turned out, on matters such as parliamentary accountability, management and how the service works with Ministers.
The Attorney-General took the view, which is repeated in the White Paper, that those contributions, irrespective of their content, were a breach of the life-long obligation of absolute confidentiality and had to be hit with the law. It was a very odd view, bearing in mind the fact that the Director-General of MI5 had known all about his former employees' contributions and had sent round an internal circular to his officers saying that they had nothing to fear from the programmes. The Attorney-General evidently took a different view. He hurled writs and injunctions at the BBC more in the manner of an exuberant wedding guest throwing confetti than a Law Officer of the Crown. When the confetti settled, not a comma was changed in the programmes. Every legal action was withdrawn. Not one word was struck out, and all three programmes went out intact.
The hon. Gentleman is too kind about "My Country, Right or Wrong". He will recall that he Government first tried to insist on seeing transcripts of the programmes before they were broadcast and that only when the BBC properly stood its ground did the Government do the proper thing and go to the courts.
That is a perfectly fair and valid point. Why should responsible former security service personnel have to face criminal prosecution and certain conviction for talking about non-operational, non-secret aspects of their service on a topic which is already a matter of public debate? Retired military officers are able to do that all the time, often it might be said, to the benefit of the subject under discussion.
Why does Britain need to create a stockaded, barricaded leper colony of Crown servants, who have such different rules of secrecy on them that they are silenced from all communications in a far stricter way than are their equivalents in West Germany, France, Israel, Canada, the United States, Australia and all other democracies?
I fear that the combination of moral indignation and legal incompetence in the Peter Wright saga has given birth to an almost totalitarian set of proposals for this narrow group of Crown servants. Some rethinking is needed. It is no use saying that the machinery exists for security service officers to have their memoirs vetted. Peter Wright tried to get his memoirs vetted so that a deal could be struck but the Treasury solicitor refused any such deal. Mr. Anthony Cavendish sent in his memoirs and was told that five chapters had to come out. That is not reasonable machinery for dealing with memoirs or reminiscences.
We should consider what happens in other countries. The former director-general of the Australian secret service has just published his memoirs, the book having been vetted perfectly responsibly. Sir Percy Sillitoe and Sir William Stephenson produced memoirs. Ministers do it all the time in their privileged capacity. I urge the Home Secretary to insert into a Bill some proper machinery for authorising memoirs and responsible communication on radio or in discussion. The hon. Member for Westminster, North (Mr. Wheeler) is chairman of a Committee and invited a security services official to talk to the Committee. That had to be cancelled because it was suddenly realised that the absolute doctrine of confidentiality might apply. Therefore, there is a lot of rethinking to be done on that section.
Finally, on the subject of defences, I wish to record my dismay that that is no prior publication defence, no iniquity defence and that the interests of state defence has been removed. Those matters have been covered by other speeches so as time is short I simply place on record that, above all, the section 2(1)(a) defence should be reinserted. We shall return to those matters in Committee—incidentally, I sincerely hope that it will be a Committee of the whole House.
We must remember that we are legislating for succeeding generations. The little local difficulties of Peter Wright are small beer when compared with the need to draw for the future the boundaries between the individual's right to speak and the Government's right to keep secrets. That boundary needs to be drawn in a better and less authoritarian place than the one where the White Paper draws it.
First, I declare an interest as a sponsored member of the National Communications Union, which represents some 200,000 trade unionists in British Telecom and the Post Office, many of whom, past and present, will be badly affected by the Home Secretary's proposals.
Last night, when I was looking at my notes for this debate, it occurred to me, suddenly and shockingly, that it is some 31 years since I signed a document which reminded me that I was subject to all provisions of the Official Secrets Act. Some five years ago I signed another document that said that I was still subject to the provisions of the Official Secrets Act. On the advice of the then Clerk of the House, I endorsed the document subject to my privileges as a Member of Parliament and signed it. No one said anything to me about it, therefore I am probably entitled to tell the House about it.
In all the time that I have been involved in trying to deal sensibly with the interception of communications and other aspects of the Official Secrets Act, I have determinedly not broken the law save in one respect. I have always accepted prior publication. If something was common knowledge in the public domain and was in circulation, I could see no reason why I should not refer to it in the same way as any other hon. Member if it assisted in our debates.
Perhaps it will assist the House if I put on record my union's general view on the reform of the Official Secrets Act. We accept that certain categories of information in the Post Office and British Telecom ought to be protected by criminal sanctions but that those categories should be as few as possible, compatible with the interests of the security of the nation and individual privacy. We support the Government's broad approach of replacing the catch-all section 2 of the 1911 Act by more specific sanctions. We believe that criminal sanctions should apply only to security and intelligence information if its disclosure would cause serious injury to the interests of the nation. We believe that classification should be determined by the courts, or at least by an independent committee, and that there should be a statutory right of access to official information in all Government Departments on the lines of the American Freedom of Information Act.
Therefore, the Government should not proceed with legislation on the reform of the Official Secrets Act at least until the proposed study of overseas experience of open government has been completed, published and evaluated by the House.
That demonstrates to the House that we take these matters seriously, we do not take lightly our responsibilities, and that we always try to be as sensitive and sensible as possible when dealing with these matters.
I shall now return to the White Paper that exists rather than the one that we should like to see. Ours would be rather more on the lines of the one published by the hon. Member for Aldridge-Brownhills (Mr. Shepherd) who is entitled to be disappointed with what is before the House. Paragraph 53 on interception is gibberish. The Minister should not rely on the Interception of Communications Act 1985 because that introduced an even more oppressive regime than that which existed when it was not clear whether intercepting communications was legal. The paragraph says:
no information obtained by means of interception can be disclosed without assisting terrorism or crime, damaging national security or seriously breaching the privacy of private citizens.
That is clearly nonsense. What about the many private citizens whose telephones and mail are intercepted and who are entirely innocent? Their privacy has been seriously breached by the state and they have no effective
safeguards. There is no point in the Minister diving for the 1985 Act. I know that it contains safeguards but they are not good enough.
It is pointless for a citizen to say, "I think that my telephone is being illegally tapped." By the time anybody comes to investigate it, the illegal tap will have been lifted and the people who investigate are qualified only to look at the paperwork. They are not qualified to go into the telephone exchange to look at the main frame to determine whether the line contains a connection additional to those that should he there. They have no expertise in doing that and could not do it. In such a case, surely the least to which a citizen should be entitled is the sight of what had been obtained from his telephone line or from his post, and he should also have sight of that information being destroyed. Hon. Members should remember that I am talking about an innocent British citizen, guilty of no crime whatever because the legal intercept has failed to turn one up.
The Minister cannot tell the House that there is not continued abuse by the security services and the police of their powers to intercept, because that abuse continues. There are no fewer intercepts than there were before and a high proportion were not properly authorised. The Minister would not know that. I have discussed the matter with previous Home Secretaries.
The hon. Gentleman is making an extraordinary allegation. Is he seriously saying that many illegal intercepts have been conducted by the police and the security services? Has he made that same allegation to the judge who, under the 1985 Act, is responsible for supervision? I presume that the hon. Gentleman has done that.
Mr. Mc William:
Over the years the allegation has been made repeatedly by me and by other hon. Members. It has been made specifically to the bodies responsible and information has been supplied to them, but no effective action has been taken because it is quite convenient to leave the situation as it exists.
Is the hon. Gentleman anxious about the telephone of any hon. Member being tapped either at home or in the office?
No, I am not. If the hon. Gentleman casts his memory back to 1964 he will recollect that the then Prime Minister, now Lord Wilson of Rievaulx, said that when he assumed office he discovered that intercepts of mail and communications had been in existence for Members of Parliament and that he had had the practice stopped. In response to questions the Prime Minister has repeatedly told the House that that practice no longer continues. I have no proof that since 1964 any hon. Member has been or is being intercepted. That is not to say that it cannot happen because of another matter that I am about to deal with, but it would be accidental rather than deliberate.
I shall now deal with international relations. The hon. Member for Aldridge-Brownhills wondered what kind of organisation would be caused problems. A problem occurred five or six years ago when it transpired in evidence before the American congressional armed forces committee that the supreme allied commander in Europe had applied for an upgrade in nuclear shells with screw-on adaptors that would convert them to neutron weapons—there had been discussion about that in NATO—and
that that highly confidential, highly classified information had appeared in American papers. We will not be able to discuss that. Paragraph 50 of the White Paper says
or to endanger the safety of a British citizen.
Were an update to take place, it would endanger the lives of members of the British Army of the Rhine because the only way in which artillery can be used is close up.
I am deeply disappointed with the White Paper. The opportunity to do something constructive has been lost. Many hon. Members had high hopes for the Protection of Official Information Bill. I am not sure how members of my trade union will be affected by the proposed reform. Are those employed by the Post Office covered because they are still public servants but those employed by British Telecom covered differently because they are not. or will an additional section be passed that will again whip us all in? I very much suspect that one will be, but I look forward to finding out.
I draw hon. Members' attention to paragraph 17, which deals with ministerial certificates. It contains a sentence—if I take it out of context, hon. Members will understand—that underlines the Government's thinking behind the White Paper. It says:
But no other body or individual shares the Minister's responsibility for safeguarding the interest of the nation
I remind the Minister that a countryman of mine called Charlie Stuart once thought that and lost his head because of it. We also had the deposition of James II and the glorious revolution. The House is not always so supine as to accept ministerial diktat over the rights of individual citizens, and I am afraid that those rights are not being extended by the White Paper.
In his concluding remarks, my right hon. Friend the Home Secretary said that he saw the White Paper as a "significant step towards reform." Section 2 has stood for a long time and, as it has been through a bruising history of disagreement, there is a tendency to regard this reform as the only chance to effect the legislation for many years ahead. My hope and expectation is that when this legislation is passed—I have no doubt that it will be amended—it will create, as experience of it grows, a platform from which we can advance further.
The White Paper explicitly has a limited objective—to make it simpler to enforce section 2 and make it narrow in scope. Perhaps it goes nearer than the right hon. Member for Birmingham, Sparkbrook. (Mr. Hattersley) thinks to his aim of positive, tight and effective control. It is not a freedom of information proposal.
I share the schizophrenia of the public—and, I suspect of hon. Members—about the secret services. Part of me recoils from the spectacle of society being permeated by large numbers of anonymous, perpetual schoolchildren, fascinated for life by dungeons and dragons games played by real people and increasingly persuaded that everything that happens does so because of a malign, conspiratorial intent.
The idea that my telephone might be tapped without the knowledge and consent of my right hon. Friend the Home Secretary or of my right hon. Friend the Prime Minister, that information derived from the tap might be entered into records of whose existence I shall for ever remain ignorant and that it might be seen by people of whom I am ignorant and who will make what use they choose of it, sends a frisson down my spine. I long at such moments for tighter and more open control. That is why we should consider carefully, on another occasion, the suggestions made by many hon. Members and also the suggestion made by the right hon. Member for Blaenau Gwent (Mr. Foot) that we should have much tighter parliamentary control of the security service machine to provide an effective recourse for individuals who may be damaged by improper and oppressive activity by the secret services.
However, when I learn that a 1,700lb bomb has been placed in a shopping centre—timed to go off to create the maximum civilian casualties—and has been reached by brave security men less than five minutes before it was set to explode, I realise how much we owe to the security services. I then recoil from measures that might destroy their effectiveness or diminish their protection against injury from our country's enemies. In that sense I am schizophrenic as, I am sure, are many other hon. Members.
The issues raised go wider than today's debate. I have made clear my support for a degree of parliamentary control over the security services, if only over their budget. As my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath) remarked in an earlier debate on the subject, we do not even have that degree of control.
My right hon. Friend the Home Security has advanced the position considerably and should be congratulated on listening so carefully to what was said when the House debated the Bill promoted by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd). I welcome the assertion in the White Paper that Cabinet documents as a class are not to be protected under section 2. Policy-making in this country is too secretive, partly because we have so much legislation in each parliamentary Session that speed rather than thoroughness becomes the touchstone of ministerial effectiveness. I welcome the fact that section 2 will no longer cover the majority of Cabinet papers, although, of course, internal discipline will still afford them some protection.
My right hon. Friend the Home Secretary explained that he was determined to reduce the material covered by section 2. He will do so against the background of a massive reduction in the number of subjects to whom section 2 applies. In the teeth of vigorous opposition from Labour Members, who are now so keen to denigrate the White Paper, the Government have hugely reduced the size of the public sector and hence the scope of the Official Secrets Act.
I also welcome the change that removes the offence of receiving information, and I welcome enormously the policy of leaving decisions to juries. It is highly probable that that decision will lead to a progressive narrowing of the categories of case brought by Governments, as juries tend, over time, to be more sensible than Governments. That is what Governments mean when they talk about perverse juries. However, it is more appropriate to handle such matters through juries than to leave it to Ministers to decide matters in their own cause.
The campaign for fewer secrets and less protection for certain categories of secret would be greatly enhanced if we had a higher quality of journalism in this country. There are still too many journalists who find it easier to titilate their readership with scabrous details of the family lives of public servants who are sometimes thrust into the limelight unnecessarily than to collect and painstakingly to distil the mass of public informattion that is available.
If journalists were seriously concerned to press to the limit the information that is already available to them, we would be better placed to argue for the next stage of openness. It is because I have no doubt that we need more openness that I welcome what my right hon. Friend and his colleagues have done to open up the sources of information that we have, and the journalists, use so little.
It is essential to have some mechanism to prevent the treacherous, the unbalanced, the disgruntled or the venal from betraying their colleagues and/or the Government. In the time of the former Conservative Government, my right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath), the then Prime Minister, sought the views of editors on what should replace section 2, and the only reply that he received was that section 2 should be wiped out, nothing should be put in its place and everybody should be free to publish everything except information controlled by section 1. That was not acceptable then, and I suspect that it would not be acceptable to any subsequent Prime Minister, and I congratulate my right hon. Friend on advancing the matter since then. Progress will depend on a combination of experience and trust. I am hopeful that experience will show the Government that they can go further towards trusting the people, and I trust my right hon. Friend, who said that these proposals are a "significant step towards reform".
I hold a quiet view of my own that far too much of the time of the Chamber in the past three or four years has been spent on official secrecy. The Government, the Opposition and the media have got into a hyperactive state over what is meant by official secrets. We should recognise that, by and large, we are damn lucky that we live in a comparatively open and free country. I wish that the House would spend more time looking at the confidential information about the nation's economy, industry, commerce and business. Grave matters arise in these important sectors, but we do not seem to have got our legislation correct in dealing with those who have done more damage to our economy than ever Peter Wright or any other alleged malefactor has done.
I have spent much of my life in industry or dealing with matters relating to industry. It is sad to think of the vast amount of time that is spent by companies, whether multinational or medium-sized, on protecting their vital interests. It may interest the House to know that for a number of years I have had links with the CIA. I refer, of course, to the Chemical Industries Association. This organisation, which represents virtually every chemical company in the United Kingdom, is disappointed, as I am, that nothing in the White Paper gives any information about the Government's thinking on this important sector.
However, from time to time these companies voluntarily hand over information to the Government, directly or through Government agencies. That information is often requested by the Government. It is often information of an economic or business nature. It might concern sales, production volumes or trade secrets. Many of the trade secrets in the chemical industry concern chemical formulas.
A great deal of the information that companies hand over to the Government or to Government agencies is often not patentable and is given to the Government on a strict commercial confidential basis. The White Paper does not recognise the commercial value of that information if it should fall into the hands of competitors. It does not take a very bright person to realise that most of the industrial nations with embassies in the United Kingdom employ a person who is soley engaged in what we would call industrial espionage. We have seen the damage that has been done by Third-world countries emerging into industrial states and blatently taking away many of our long-established patents and much of our technology.
I am not suggesting that, because information is given to a civil servant on a commercial basis and that civil servant inadvertently discloses some of the information, he should be subjected to criminal sanctions, but, if companies have to proceed through the present civil system, there are often long and difficult legal delays in providing them with adequate compensation if they win their cases.
It is sad to think that, while legislation is pending, the advantages of technology could be frittered away. That means loss of profit for a company and, in the long run, damage to shareholders. More importantly, from my political stance as a trade unionist, it means a loss of job prospects for employees. I hope that the Minister will pursue the issue of commercial confidentiality and the damage that can he done to this country's interests with the same vigour with which he has pursued matters concerning official secrecy, at his next Cabinet meeting or when he and his colleagues consider the preparation of the Queen's Speech, and bring forward appropriate legislation.
I am sure that the Minister will find much more detailed information by contacting the organisations that represent industry, trade and commerce, and I hope that he will recognise the need to strengthen the law regarding the breach of commercial secrets. In the long run, that is more damaging to the nation and to our industrial base. High technology has been developed in some of our companies with national household names, yet the rewards are not being given to the nation and to those who are employed, either directly or indirectly, by those organisations.
I have listened to the debate with great interest. I am surprised that so many hon. Members are so knowledgeable about matters of secrecy. I am pleased that I am ignorant about them. I have never signed the Official Secrets Act and I do not see any need to do so. The House should not get too hetup about the matter. We should direct our attention to matters of real substance, such as the well-being of the industrial base of our nation.
I am grateful for the opportunity to speak in this debate. I waited for five hours to speak during the debate on the Bill promoted by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) but alas, was not called. I am grateful for the opportunity to bring the House back to the subject of official secrets. The hon. Member for Wallsend (Mr. Garrett) should be reassured because although he may never have signed the Official Secrets Act, he and everybody else in this country is covered by it, whether they like it or not. Signing the document simply means that in the event of being convicted, one would not have the excuse of saying, "I did not really know what I was doing your lordship." The prosecution would say that the gravity of one's offence had been brought to one's attention.
I am also grateful to my right hon. Friend the Home Secretary because he has answered a couple of the points that have caused me considerable concern. If I understood him correctly, he seemed to be saying that although there was not a defence of public interest, a defence of prior publication or a defence of iniquity in the White Paper, juries would take such matters into account. Unfortunately, I did not really appreciate my right hon. Friend's attitude of "We know best" and his statement that there is a mechanism whereby people can publish and former members of the security and intelligence services can write and get authority to publish material.
Because so much depends on the three magic words, "disclosure without authority", we should try to look at the mechanism of "authority". I had some first-hand experience of that in the late 1970s. I approached the then secretary of the D notice committee. I said that I had been commissioned to write a history of the security service and that although I had never been employed by the security service, I wanted to be able to ensure that I was not damaging national security and that I should like to be able to submit my manuscript. I was treated with something close to contempt.
In the following year, when I did submit my manuscript, a look of horror came over the secretary's face. At our third meeting he said that he had been instructed to request the deletion of 194 names, plus two chapters relating to the security service's wartime work in Ireland. We negotiated. Some chapters were deleted and a large number of names removed. Nevertheless, the book got through. The system seemed to be working at that stage.
However, by the following year things had gone badly wrong. I telephoned the D notice secretary and said that I had written another book about the security service called "A Matter of Trust", and that I would like to submit it. He said, "Splendid, send it round." I was never able to send it round because within a day and a half of making that telephone call, I received an injunction preventing me from taking any step towards the further publication of my manuscript. It turned out that the D notice secretary was also covered by that injunction. Things do not seem to have changed very much since those days.
It is extraordinary that just a few years later, with the BBC undergoing exactly the same experience, we do not seem to have learnt a great deal.
The injunction was issued by the Attorney-General and the case was dealt with in 1982.
Is the D notice committee really a sensible mechanism for allowing and studying publication? I do not think that it is. The present secretary of the D notice committee is frank about his views. He says that nothing on this subject should ever be written and that, given the opportunity, he would stop all publications of this kind even if they were historical in nature. He is really a glorified photocopier. He receives a manuscript, photocopies it and sends one copy to the relevant department—the security service, the intelligence service or Government communications headquarters, Cheltenham. They then produce comments.
The point is that the department's serving officers look through the manuscripts to decide what should and should not be published or what should be deleted. That is absolutely crazy. For example, I was asked to remove dozens of names from the most recent book that I delivered to the D notice secretary, including names which appear in Kim Philby's book in 1968. In the face of that kind of obstruction, can my right hon. Friend the Secretary of State really claim that the system works well? I do not believe that it does.
Why was my book in 1982 called "A Matter of Trust"? It was so titled because I believed that that was the essence of the relationship between the director-general of the security service and my right hon. Friend the Prime Minister. Even with the Maxwell Fyfe directives, there was no other formal relationship between the two.
A Prime Minister must have confidence in his or her director-general. However, looking back over my experience, what material was deleted from "A Matter of Trust" when it was eventually published? What were the Government so concerned about? The deletions involved examples in which the director-general of the security service had deliberately mislead the Prime Minister of the day. I am not referring to current events or events about which this Government have any reason to be embarrassed. The events date way back to when the director-general of the secretary service deliberately mislead Prime Minister Attlee over whether Klaus Fuchs had already been investigated and whether there had been a recommendation for Fuchs to be subject to an inquiry because of his probable espionage. That was a major mistake. The director-general at the time, Sir Percy Sillitoe, was persuaded, against his better judgment and very reluctantly, to protect his organisation. He was told by three senior members of the security service that if he went to the Prime Minister and told the truth, it would be damaging to the morale of the security service. That happened in 1949, but there have been other cases, including, for example, the Bruno Pontecorvo case and the astonishing Burgess and Maclean White Paper.
I do not want to delve into history. My point is that the Government cannot claim that everything in the garden is rosy. Whatever one's perspective when we look back at these events, the fact is that things have gone very badly wrong. There is no reason to believe that anything has changed.
Very recently the all-party parliamentary war crimes group tried to obtain from the Foreign Office a file which the Foreign Office admits exists on Klaus Barbie. I suggested to the Minister concerned at the Foreign Office that presumably the reluctance to release the file stemmed from the fact that the Foreign Office wanted to ensure that Barbie received a fair trial in France and now that he has been convicted that excuse no longer existed. I was told that because the file, dated 1945–46, contained intelligence information, it might be of use to an enemy and could not be released because there was established precedent. I asked the Minister of State at the time, "Are you aware that the person who was head of the anti-Soviet section within the secret intelligence service in 1945–1946 was Kim Philby, and from whom are we trying to keep that fact secret?" That is the attitude today. More recently, I have tried to obtain access to wartime decrypts of signals that passed between the Japanese naval attaché in Berlin and Tokyo, which are in the Foreign Office's possession, in the Public Record Office. Those same decrypts are available in Tokyo and in the Washington national archives. However, the Foreign Office refuses to allow those files to be available in the Public Record Office and to explain its actions. That is an appalling state of affairs, and it is a direct reflection of Whitehall's attitude to this very sensitive subject.
The Government have not had an easy ride over secrecy. If the House will bear with me, I shall mention a few of the cases we heard about this morning. Some will be familiar to many people and some will not. Since 1979, there has been the Tisdall case; the Ponting case; the Belgrano affair, which was intelligence orientated; the Cathy Massiter case; telephone tapping scandals; the "Spycatcher" fiasco; the BBC programme "My Country, Right or Wrong"; the conviction of Michael Bettaney; the injunction on Anthony Cavendish; the GCHQ union saga; the GCHQ scandal of leakages in Hong Kong; the Zircon satellite affair; the Cyprus signals case; the Rothschild statement; and Geoffrey Prime.
My reason for mentioning them all is to demonstrate that they are not passing issues or banana skins that are special to this Government. They are banana skins that will blight all Governments of all complexions in the future. It is an occupational hazard that there will be leakages of information and security cock-ups, and it is important that we should get these matters right.
I revert to 1979, and to a case that I did not mention but which was probably the most significant—that of Anthony Blunt. It was significant because, as was previously stated, the Prime Minister, to her credit, was very frank about the security service's role and made a candid statement. She was more frank than any previous Prime Minister on the subject. That was in 1979. It is not so much that we should commend her for her frankness, but that we should examine what was the advice of the security service in 1979. I can tell the House what it was.
Sir John Jones, who was then director-general of the security service, said, "You must not expose Sir Anthony Blunt. He must be protected at all costs, because if he is publicly exposed as a spy, we shall all be in trouble. It will mean that we shall never be able to offer credible immunity from prosecution to others of his ilk." The Prime Minister considered that advice, and I imagine that because she is a barrister, she considered also that she might have had to stand by and watch Sir Anthony Blunt perjure himself, as he was going to do by bringing an action for defamation against an author. The Prime Minister decided, rightly in my view, that the security service's advice was wrong and that here was an opportunity for her to be frank. That is exactly what happened.
Alas, circumstances have changed since 1979. How are hon. Members ever to be educated about and to acquaint themselves with the conduct of the security service and related matters unless they are instructed in broad terms, on matters of principle, by people who have experience of them? My hon. Friend the Member for Thanet, South (Mr. Aitken) mentioned the case of John Day, who was injuncted when he wished to discuss not operational details or matters relating to his work in the security service that were definitely secret but broad principles of accountability. That was banned, and would have been banned under the measures proposed in the White Paper it would also have been banned. He might even be serving the first year of a two-year prison sentence by now. Michael McCaul is another former member of the security service, someone with wide experience whom the nation trusted to work in a most sensitive area for more than 30 years. If he cannot be trusted to come to the House and brief Back Benchers on the principles of accountability and the problems of supervision, on whom are we to rely?
According to my hon. Friend the Member for Westminster, North (Mr. Wheeler), we are supposed to rely on the present system of accountability, which involves the Secretary of State coming to the House and answering questions. That sounds splendid; the trouble is that it does not happen. When my hon. Friend the Member for Aldridge-Brownhills asked a relevant question, he was denied the information that he sought because, by convention, the Secretary of State does not answer questions on this sensitive issue. I do not consider that that is accountability.
I am focusing my remarks particularly on the paragraph relating to the duties of confidentiality of members of the security service. It is important to get this right in the legislation, because it will not go away. During the appeal that was heard in the other place, counsel for the plaintiff—-the Government—said that he knew of 10 books that were to be written or had already been embarked upon by former members of the security and intelligence services, some of them recently retired. He was classically misinformed. By my reckoning the number is nearer 15 or 16, and I hope that the Government are rather better informed than I am.
Those proposing to write such books include John Day, Nicholas Elliott, Jock Kane—who has been injuncted—Anthony Cavendish—who has been injuncted but has a contract to write a biography of Maurice Oldfield—the Seymours, the late Jack Morton—whose diaries are to be published—Dick White and Desmond Bristow, who is in Madrid and, like Peter Wright, is out of jurisdiction, as the law that we are discussing will not remotely affect people abroad. Fred Winterbottom is embarking on his fourth volume. Leo Marks has already run into some trouble. Anthony Simpkins has been authorised by the Government, but the historical section of the Cabinet Office has got cold feet and the book does not seem likely to be published in the near future. David Smiley has announced his intention of writing a book. George Blake has published one in the Soviet Union, and another is due out shortly. Even Greville Wynne, God bless him, is writing yet another book from Majorca.
It is all very well to say that there is a mechanism for such people to write their memoirs. There is a mechanism, but it has never worked, it is not working now and there is not the slightest chance of its working in the future. There are possibilities of finding one that would work. Could we, for example, use the Security Commission? Somehow I doubt it. It may have lost a bit of credibility following its recent reports, and no one took any notice of its strong recommendation some years ago for the introduction of polygraphs.
One wonders, too, whether people living abroad will have a duty to submit their manuscripts to the authorities in this country. We know of many cases where they have not bothered. We know also that when they have tried—as did Gordon Welchman, who wrote about his wartime experiences at Bletchley park—they have been threatened with prosecution if ever they returned to this country. GCHQ was so vindictive towards that man that he became an American citizen. He was literally hounded to his death by GCHQ in America. That is no exaggeration. His only job was with the Mitre Corporation in the United States. On GCHQ's recommendation his security clearance was withdrawn. Because he could not work and because he tried to fight that ban in America, he eventually succumbed to a coronary. We do not want that to happen again. We must not create a leper colony.
I am all in favour of confidentiality and of secrets being kept, but I believe that these individuals can be trusted to give us the benefit of their experience without jeopardising national security every time they write or say anything on the subject. We heard about what happened in Australia: the director of the Australian Security Intelligence Organisation wrote a book that has been cleared. We heard about the Comte de Marenche in France. There is scarcely a CIA officer in the United States who has not written a book. There are 14,000 volumes on espionage in the CIA library. A considerable number of those volumes were written by members of the CIA who used the publication review board as an effective mechanism for getting clearance and avoiding the problem of jeopardising national security.
I have long advocated not parliamentary control over the supervision of the security service but the introduction of non-executive directors who would have the confidence of the House. They would be inside my right hon. Friend the Secretary of State's wall of secrecy. They would be able to supervise and provide a safety valve for members of the Security Service, who would, be able to go to the directors and explain in confidence that they believed that there had been some kind of an inequity. Sir Philip Woodfield has been appointed as staff counsellor, not just for the security service but for the Secret Intelligence Service and for GCHQ. Those latter organisations do not really need a staff counsellor, but the security service needs one. He must not, however, be stuck in the Cabinet Office. It would be impossible for him to work efficiently inside the Cabinet Office. Nine buildings in London are used by the security service. Security service officers who are unhappy about their duties have to ring the Cabinet Office to make an appointment to see Sir Philip. That is not the best system. He ought to have an office inside central security service headquarters so that people could slip in to see him and explain their grievances.
I thank my right hon. and learned Friend the Member for Richmond, Yorks (Mr. Brittan) for suggesting that we should look again at this matter. The 1911 Act, which was supposed to have been a temporary law, has been with us for 77 years. It was passed by a Liberal Administration. Now is our opportunity to make sure that we get it right for future generations. It is vital that a law that will be on the statute book for many years should be the best that we can devise. I urge my right. hon. Friend the Secretary of State to look again at the possibility of establishing a mechanism whereby members of the so-called leper colony will have an opportunity to publish.
Order. The winding-up speeches are expected to begin at about 2 pm. Three hon. Members still wish to speak. I hope that they will divide the time between them.
It is a pleasure to follow the hon. Member for Torbay (Mr. Allason). Before he came to the House, I thought that he was so well informed that he must be a creature of Government. In the past year, to his credit, I have become somewhat disabused of that view. I agree with him about D-notices. My right hon. Friends the Members for Blaenau Gwent (Mr. Foot) and for Morley and Leeds, South (Mr. Rees) will remember that ever since Harold Wilson got into a terrible fandango with Sammy Lohan, it has been thought that D-notices should be reformed.
For more than 26 years, I have listened to almost every statement made at the Dispatch Box. Like my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley), I can recall no occasion on which a senior Minister managed to make a statement about something which, on examination, turned out to be so very different from what it purported to be. To save time, I shall refer the Home Secretary to my question asked on 29 June 1988 at column 374 about paragraph 47 of the White Paper. Also to save time, I shall merely endorse the description of the Ponting trial set out by the hon. and learned Member for Montgomery (Mr. Carlile). Under the proposed dispensation, Clive Ponting would clearly have been sent to prison.
Paragraph 47 of the White Paper is designed to stymie people who are awkward to the Government and to make jolly sure that there is never a repeat of behaviour towards authority such as that of the Ponting jury. If the Ponting jury was not in the Home Secretary's mind when he made his remark about juries being perverse, what jury did he have in mind?
Paragraph 47 is the precursor of a clause in a Bill which would protect Ministers from being found out if they misbehaved towards Parliament and misled the House of Commons. It is about putting the frighteners on potential deep throats, without whom it is exceedingly difficult for Members of Parliament to call Governments to proper account.
Paragraph 47 makes no distinction between what Sir Frank Cooper has described as genuine security, and political security, but then political embarrassment has always been a far greater spur to action—witness the Zircon case—than the real security interests of our country. The Home Secretary talks about a cornucopia of information coming forward, and a definition of disclosure that is harmful—harmful to whom? The disclosures that seem in the Government's imagination to be harmful are disclosures which embarrass politicians. I thank the Home Secretary for his letter of 21 July. I realise what he is saying about paragraph 47—
It is certainly not our view that anyone who might come into contact with members of the services in the course of their duties, still less anyone who might simply see, as part of their work, information emanating from the services, should have the same liability.
I accept that, but designation would be resorted to when Ministers got into a tight corner—when it mattered; when the chips were down.
There are Conservative Members, although they are not present today, who use unparliamentary language about Mr. Ponting. That is their scale of values, but on my scale of values, the most serious crime in public life is direct and calculated lying to the House of Commons to protect a Minister's position. The White Paper protects Ministers from the consequences of lying to the House.
What we now have before us is a charter to help Ministers who need to lie to the House to protect their position and to get away with it. From parliamentary references such as question No. 1 on 23 June 1988 at column 1253, it is widely accepted in the House that the Prime Minister did know about the role of the then Trade Secretary when she set up an inquiry into the leaking of the Law Officer's letter in the Westland affair.
There is a resigned shrug of shoulders and an observation that, after all, "she got away with it". After a quarter of a century in this place, I am not prepared to shrug my shoulders. Deception of the House of Commons is unacceptable behaviour. Would the Prime Minister have dreamed of not designating in the Westland affair Mr. Charles Powell, Mr. Bernard Ingham or Sir Robert Armstrong? If Colette Bowe, John Michell, John Mogg and Sir Brian Hayes had all gone to Sir Philip Woodfield, would they have been designated, and what would have happened to their careers had they done so? We can only speculate on what would have occurred.
I agree with my right hon. Friend the Member for Blaenau Gwent that perhaps the right hon. and learned Member for Richmond, Yorks (Mr. Brittan) is not primarily to blame. However, it is quite wrong that he should go to Brussels while the stigma of blame and deceit and responsibility for the leaking of the Law Officer's letter is attached to him. He should not go if he is not exonerated.
This matter concerns the integrity of our public life. The hon. Member for Thanet, South (Mr. Aitken) said, "I think I know why the White Paper is over the top. I say bluntly that it has an all-pervasive influence—the malign influence of the Prime Minister.
The Prime Minister has got away with something else—gross abuse of the Civil Service and the powers of deceit which led through Westland, her role in the miners' strike, the Libyan bombing and the raid on the BBC in Glasgow referred to by my right hon. Friend the Member for Sparkbrook. It began with a series of events which culminated in the 11 days at the Old Bailey. The Ponting trial, and the White Paper in its present form, would never have come about had not the Prime Minister, in order to protect her position as Prime Minister, insisted—I choose my words extremely carefully—on sustaining a lie to Parliament and not correcting parliamentary answers. Because a particular Prime Minister is an habitual liar to Parliament—
Order. The hon. Gentleman has used an unparliamentary expression. He knows that it is out of order and he must withdraw it.
I chose the words to get over this extremely carefully. I believe that it is central to the White Paper. I do not want to take up the time of my hon. Friends, so I willingly withdraw if you say—
The hon. Gentleman must not argue with the Chair. He has used an unparliamentary expression and he must withdraw it.
In his written evidence to the Franks Committee in 1971, Mr. Justice Caulfield, the judge in the Daily Telegraph secrets case said:
I think the section"—
that is section 2—
in its present form could be viciously or capriciously used by an embarrassed Executive.
That is the objection to the package in the current White Paper.
When I listened to the Secretary of State earlier, I was struck by what was almost a tone of vainglorious boasting in his speech. He spoke about an earthquake in Whitehall. I looked at the civil servants behind him and they looked distinctly unquaked. He talked about the information that the Government give out. The point is not the information that the Government want to give out but the information that they do not want to give out, and the extent to which the public should have access to that. Above all, he talked about the White Paper not widening the law. It could scarcely do that. Under the present section 2, there are no fewer than 2,314 listed offences. It will not do for the Secretary of State to boast that the package in the White Paper does not widen the law. That would be scarcely possible.
The question of interception has been thoroughly dealt with by some of my hon. Friends. However, it is worth asking why an exception is made for phone tapping and opening people's letters. No other western country needs such a provision. The White Paper talks rather hypocritically about the importance of not breaching the privacy of private citizens. If phones are being tapped by the Government it ill-behoves them to say that they do not want information given out because they are worried about the privacy of private citizens.
The Government justify making a blanket exception of phone tapping and mail opening on the grounds of terrorism, crime and national security. I suggest that the phone tapping and mail opening is done not because they are worried about those things, but because they are worried about exposure of phone tapping that has nothing to do with national security, crime or terrorism.
I shall now turn to the absence of a public interest defence in the White Paper. The Government justify the absence of such a defence by saying that it is not the practice to take motive into account in matters of law. That is a perverse statement because section 1 of the Official Secrets Act, which is not to be abolished, explicitly takes motive into account. It is surely perverse to say that the motive for passing on secrets is admissible if a person will be proved guilty but inadmissible if someone is trying to prove himself innocent.
Conservative Members know perfectly well that there is a long standing common law defence against actions for breach of confidence on the grounds of public interest. In the discredited section 2 of the Official Secrets Act there is even an implicit defence in terms of the public interest. This is what the Government seek explicitly to rule out. Conservative Members talk about civil servants who are worried about what they will be asked to do and say that all they have to do is to refer things up the ladder. That is nonsense. If a hapless higher executive officer or Home Office principal is instructed to do things that are against the public interest, his instructions will have to come down the chain from, perhaps, a permanent secretary or an assistant secretary. It is absurd to say that the matter can be referred back up the chain and to say so shows a lack of understanding of the realities of life for the groundlings in the Civil Service.
Behind the public interest matter is the shadow of what some of us thought was the most serious aspect of the Ponting case—the Government's assumption that there is no distinction between the interest of the state and the interests of the Government. That is what the judgment showed in the Ponting case and it is dangerous. That assumption is the reason for the Government not allowing a public interest defence. That is contrary to traditions of common law and fairness and to the interests of the nation as a whole.
I shall now deal with the blanket exclusion for life of members of the security services who will be deprived of their ordinary civil liberty to speak about things that they know. It is worth reading the White Paper closely on this matter. It says that members of the security services are to lose all their civil rights because any allegations by them carry credibility. What are the Government saying? Are they saying that it is acceptable to leak false secrets but not to talk about things that may be true? They say that they will withdraw civil liberties from members of the security services because otherwise public confidence in the secret services may be reduced.
If the Government are interested in building public confidence in the secret services the way forward for them is not to reduce civil liberties but to recruit and manage properly and, possibly, give members of the security services proper pensions. Far from being worried that disclosures by the security services will reduce public confidence in those services, the Government are worried that past and future disclosures by the security services might reduce public confidence in the Government.
I should like to quote no less an authority than Chapman Pincher whom E. P. Thompson called that conduit into which the establishment leaks. In his evidence to the Franks Committee, he said:
In my experience, which as I say is a long one, 'politically embarrassing' is always a much higher security classification than 'top secret'.
The Government should spare us the cant of being worried about public confidence in the security services. They are worried about what present or ex-Security Service members might say that would damage confidence in the Government.
The life-long duty of confidentiality that the Government are trying to impose on Security Service members cannot truly be achieved this side of the iron curtain. The Government are trying to impose an iron curtain on past and present members of the security services, and that is what makes their behaviour so deplorable.
The right hon. and learned Member for Richmond, Yorks (Mr. Brittan) said it was an ingenious White Paper. It is ingenious because the hapless draftsmen have gone through every embarrassing security incident of the past 10 years and tried to draw up a White Paper to ensure that they will never happen again. That is why the White Paper is so incoherent and why it bears no references to the carefully worked out arguments of the 1971 Franks report.
In its opening chapter, the Franks report said:
A government which pursues secret aims, or which operates in greater secrecy than the effective conduct of its proper functions requires or which turns information services into propaganda agencies, will lose the trust of the people.
Nothing in the White Paper will enhance the trust of the people in the Government. It is an ill-argued and incoherent White Paper. Labour Members sincerely hope that when legislation is brought forward the issues that we have raised, especially the public interest defence, will be considered carefully by the Government.
I shall be brief because of the pressure of time. I shall not refer to the detail of the White Paper because it has been dealt with excellently by my hon. Friends.
The Secretary of State gave a lyrical presentation about the Government opening doors and unleashing information. In an intervention, I asked what new information would be revealed by the White Paper. His reply was that it was not a Freedom of Information Act. I suspect that means that there are no significant libertarian elements included in it.
The state and its corporate control have grown alarmingly in the past year, as we saw in the measures with which we dealt in the past week. My right hon. Friend the Member for Blaenau Gwent (Mr. Foot) mentioned the 1688 tercentenary celebrations, a Bill of Rights and the checks, balances and liberty of the constitution. This week, we have dealt with the final stages of the Education Reform Bill and the poll tax legislation and are now discussing this White Paper. There could be no more sinister combination of elements that reveal the degree of state centralisation that has taken place. The hon. Member for Mid-Kent (Mr. Rowe) said that there was less state control and less scope for state secrecies because of the privatisation programme. Under the Education Reform Bill, the power of the Secretary of State for Education and Science is considerably expanded. The poll tax legislation contains a sinister set of measures that will affect civil liberties and democratic rights. Local government will finally become a creature of the state and will have little scope to take measures of its own. Civil liberties will be attacked considerably by the poll tax registrar, who will be able to raid all types of sensitive information. Even the right of petition, which the House of Commons enjoys without duress, is under threat because it has been said in the House that petitions about the poll tax could be used against the petitioners because their names could be entered in the poll tax register.
There is also the threat of national identity cards, which was suggested during the debate on the poll tax and a number of Government Members in Committee were adamant that they were in favour of such a card. The poll tax Bill also fixes the franchise by affecting registration and it will affect the fate of local election results. People will have to pay poll tax to qualify to vote. Those measures and the White Paper will give such authority to the state that we shall be in a very sinister position.
This has been a dangerous week. We have been celebrating the events of 1688, but we may not be able to do that in future.
It will have been noticed that the previous three speakers have been Opposition Members. On this occasion, the Government have run out of enemies to the White Paper. Congratulations for the debate and for the White Paper rest not with the Government but with the hon. Member—I am tempted to say hon. Friend in this context—for Aldridge-Brownhills (Mr. Shepherd). He, more than any other Member in the House through his effort and determination, has provoked the Government into publishing the White Paper.
The debate has demonstrated yet again that behind the honeyed words of the Home Secretary and his public relations staff is the reality of a White Paper that, in many senses, is as harsh and illiberal as the Act it seeks to replace. In essence, it proposes to replace a large net with large holes with a smaller net with smaller holes more effectively to catch and silence those who cause the Government embarrassment. The White Paper rejects the idea of a ministerial certificate and says loftily that such matters will be left to the courts.
Would that that were true. The courts will not be allowed to decide whether large areas of information can be made known. The Government are putting a stronger fence around six broad areas of information and will leave the courts to decide simply on the extent of any damage that the release of information may cause, or is likely to cause.
The White Paper is repressive in its denial of any public interest defence. What possible harm to security did Clive Ponting do when he told my hon. Friend the Member for Linlithgow (Mr. Dalyell) that the Government had misled the House over the sinking of the Belgrano? Did that damage security? He caused embarrassment to the Government and the Prime Minister but that is no reason to deny people who act in good faith a public interest defence. Surely the public, as represented by a jury, is a better judge of public interest than any Government. That is what the Home Secretary should have meant when he spoke of leaving it to the courts.
It was a serving officer who leaked secret information about the run-down state of our defences in the 1930s to a Member of Parliament called Winston Churchill. Did not he and the people of this country have a right to know that? That officer did no more than Clive Ponting did 50 years later. That illustrates the need for a better definition of exclusion of defence, security and intelligence information.
Ministers refused to confirm or deny the arrival of American cruise missiles at Greenham Common and Molesworth on security grounds. When Sarah Tisdall bravely made that known, she was convicted for her pains and the Government still refused to give that information or any information about the numbers involved. It took the arrival here this week of 20 inspectors from the Soviet Union, under the terms of an intermediate-range nuclear forces treaty signed between two foreign powers, to let the people of Britain know that the number of operational missiles at Greenham is 96 and at Molesworth 18. Fancy that—the Russians can know how many American missiles are down the road from the House but we cannot, and nothing in the White Paper will assist us in getting such information in the future.
The mind boggles at the blanket cover of information given in confidence by foreign Governments and international organisations. What happens when a draft directive on potato sizes is sent from Brussels? Usually, the Departments concerned with such directives consult the trade and other interests on these matters. Under the terms of the White Paper, that passing round of bits of paper with a still secret draft directive would be illegal. Or would it? At the back of this is a collossal uncertainty, because the Attorney-General stands in the wings and he decides, on behalf of the Government, whether to prosecute. This is not clearing up the catch-all mess of section 2—it is nonsensically compounding it.
Let us take the example of information useful to criminals, dealt with in paragraph 52 of the White Paper. Yesterday, a newspaper rang me to ask me to comment on news that the Bromsgrove and Redditch police force, in the west midlands, was restricting panda patrols to no more than 25 miles a day because it is denied the money that it needs to give the service that it would like to give to the public. Is that information useful to criminals? It could be held to be so. What about the number of police in a division? I expect that the criminals would love to know that. Again, who would be caught? The White Paper gives us no clues about this, because it says in paragraph 71 that it is for the Minister to decide what information is to be revealed.
Another example is interception or phone tapping. What damage to our security did Cathy Massister, a former MI5 agent, do when she revealed that the Campaign for Nuclear Disarmament had had its phones illegally tapped and its offices burgled? That did not damage security—It damaged a Government who are careless of their control over the security services. The matter is even worse, because under the White Paper anyone publishing this information would have no public interest defence, although one clearly exists.
Comedy becomes farce when we get to the denial of the prior publication defence. The world may know, but we cannot. The Home Secretary has forgotten his excitement for the fast-developing wizardry that whisks news and information round this planet in a twinkling. How does he propose to stop that publication by satellite? How is he to decide who published first, second or third, and where? If a news bulletin goes out by a satellite as it spins around aloft, there are time zone differences that will get the Government into trouble. The decision is not just wrong. It is impracticable and that is why, in the end, he will have to drop it and allow for a prior publication defence.
I agree with my right hon. Friend the Member for Blaenau Gwent (Mr. Foot) that this is a matter that should be judged by Parliament as the elected voice of the people, because it is we who stand on the side of the people against the Government. At the heart of the debate is a simple issue—the right of free people in a free society to know what an elected Government are doing in their name. That is the essence of democracy. It will not do for the Government to say, as they do, "This is a secret because we say that it is a secret." That is what undemocratic Governments around the world do. We should state and assert that a free people in a democratic society have a right to know what is going on, save only about those specialist matters that touch upon our proper security.
This is where the White Paper fails. There is its coy admission in paragraph 5 that
It does no0t … address such matters as the question of access to official information not covered by the Government's proposals.
That is what is missing and that is what is wrong. It is not about widening access to information so that the governed can know more about what those who govern are up to. The Government do not trust the people, as my hon. Friend the Member for Hackney, North and Stoke Newington (Ms. Abbott) said.
Information released from the ambit of the criminal law will not become more accessible. There will simply be different penalties for its release, such as the loss of jobs and pension rights for those in the Civil Service who release it. That is not progress. It is simply a change of direction to serve the same prohibitive purposes. When the Bill comes before us, we shall seek to amend the proposals substantially. In Government, we shall review them in the context of a Freedom of Information Act to which we shall give priority and which is the proper setting in which to consider guarding our legitimate secrets.
I recall that a previous Labour Administration made such pledges, but did not keep them. The hon. Member for Birmingham, Erdington (Mr. Corbett) was extremely generous in foreshortening the time that he had to make his wind-up speech in the interests of letting everyone who wanted to speak in the debate do so. I have done the same regarding the length of time for my wind-up speech. It must have been that extremely short period of time that accounted for the fact that the hon. Member for Erdington did not have the time to compare and contrast the excellent advances made by my right hon. Friend the Home Secretary's White Paper with anything that was put forward by the Labour Government between 1974 and 1979.
I wish to make two quick reflections regarding matters outside this Chamber. First—I exonerate any hon. Member who has spoken today from this—some people outside the Chamber, particularly newspaper commentators, still appear to be breaking their lances on the fears and rumours in print and on television about what the White Paper might have contained, rather than addressing what it says. Today, the proposals have been examined in great detail by all hon. Members who have spoken in the debate. Alas, that is not the case with so many commentators who mould public opinion.
Secondly, many hon. Members are passionately, rightly and deeply concerned about the issue, including the right hon. Members for Blaenau Gwent (Mr. Foot) and for Morly and Leeds, South (Mr. Rees), who has now left to fulfil a constituency engagement, as he courteously told us, and my hon. Friends the Members for Aldridge-Brownhills (Mr. Shepherd) and for Thanet, South (Mr. Aitken). We in Government are deeply concerned and fascinated by all the ins and outs and nuances. I represent a constituency that contains a university, and it strikes me as extraordinary that neither I nor my right hon. Friend the Home Secretary or other Ministers have received any letters from people outside. That may also be true of my hon. Friend the Member for Cambridge (Mr. Rhodes James). We must, therefore, keep our debates in the House in perspective.
I do not think that my speech deserves to be called a peroration. I should like, however, to make immediately the points that I would normally make at about 2.29 pm, because it is important that I should tell the House what will happen next before I respond in detail to as many of the points as possible. Not every dot and comma of the proposals for the Bill has been set in concrete. The debate would have served no purpose if we had taken that view. There is ample scope for discussion of the proposals and my right hon. Friend and I have listened with great care and interest to all the comments and suggestions that have been made today. We have not agreed with them all, but guided by many of them. They will inform the way in which the future legislation is drafted. We shall have to consider a number of ideas. Next Friday, there will be a debate in the other place on exactly this issue. We would then wish to have some time to reflect on what has been said in this House and in the other place and to consider other comments that have been put to us by interested bodies and individuals although, as I have said, the weight of correspondence coming in to the Home Office on this issue is tiny.
We do not intend to let the matter rest. When my right hon. Friend first announced our intention last December to produce the White Paper, he said that it would be followed by early legislation, and his White Paper repeats that undertaking. Once we have had that time—I dare say that it will not be too long—we shall set to work to prepare legislation with the intention of laying it before Parliament as soon as possible. The White Paper contains the Government's proposals, but we must remember—the Government will remember—that it is Parliament which will decide whether these or other proposals flowing from them should be translated into the law of the United Kingdom. We shall certainly not forget that.
The debate has taken us an important step nearer the reform of something that we all agree needs pressing reform. In the remaining 15 minutes, I shall reply to the comments that have been made although inevitably in this short time, I shall be unable to reply to every point. I turn first to the extraordinary speech of the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley). I shall try to pick up five of the points that he made. I turn first to his point about designation, which was a point which also concerned my hon. Friend the Member for Torbay (Mr. Allason) in an early intervention and in his speech—
Order. the hon. Member for Linlithgow (Mr. Dalyell) was ordered to withdraw from the Chamber. That means for the remainder of this day's sitting—
On a point of order, Mr. Deputy Speaker. This is a matter of great concern to the House. Now that the information has come through about the appointment of the right hon. and learned Member for Richmond, Yorks (Mr. Britian)—
Order. The hon. Gentleman was instructed to withdraw from the Chamber because he refused to withdraw an unparliamentary remark. That means that he must withdraw for the remainder of this day's sitting. I must instruct the hon. Gentleman to withdraw from the Chamber for the remainder of this day's sitting.
Order. The hon. Gentleman is an experienced parliamentarian. I repeat that I instructed him to withdraw an unparliamentary expression. He refused to do so and he was instructed to withdraw from the Chamber. That means for the remainder of this day's sitting. The hon. Gentleman must withdraw.
Parliament has been so affronted by the appointment of the right hon. and learned Member—
Order. I give the hon. Gentleman one further chance, otherwise I shall have to take further action.
In that case, I must withdraw. The affront to Parliament of the appointment of the right hon. and learned Member for Richmond, Yorks who took part in the debate without being exonerated in relation to—
As it happens, when the hon. Member for Linlithgow (Mr. Dalyell) appeared in the Chamber I was about to mention his name because he, too, was interested in the issue of designation. Perhaps I should take this opportunity to condemn in the strongest words available to me the monstrous attack that was made by the hon. Member for Linlithgow on my right hon. Friend the Prime Minister. To call my right hon. Friend "a habitual liar" without any signs of protest from those behind him is an utter disgrace. It is an abuse of the House and I am afraid that it is an abuse of the House that is repeated consistently by the hon. Member for Linlithow. Time and again he accuses my right hon. Friend the Prime Minister of the things of which he has accused her today and then, under some guise or another, withdraws. It is time that that was stopped.
On a point of order, Mr. Deputy Speaker. With respect, you have made a ruling and in my judgment and that of my colleagues, that is the end of that particular episode this morning. You should not allow the Minister to continue in that way.
Indeed, Mr. Deputy Speaker.
The right hon. Member or Sparkbrook was concerned about designation. He was worried about paragraph 47 in the White Paper where he spotted the words "groups" and "list". He thought that that would mean that there would be universal classification of people according to their category of job. However, he did not read on through paragraph 48. I will quote less selectively than the right hon. Gentleman from paragraph 48 which states:
But the persons concerned would be notified individually; and criminal liability would attach only after the individual officer concerned had received notification of his liability.
Each individual will be designated individually.
I suppose that from time to time there are expressions for a group of people. I suggest that a group of principal private secretaries might be called a discretion of principal private secretaries. Perhaps we may refer to them as a group, but each of them acts as a conduit of information from the services to their Secretaries of State and they will be designated individually if that is the decision of the Minister as set out in the White Paper.
The right hon. Member for Sparkbrook was also concerned about certain earlier cases. I do not remember them all as I did not write them down, but they will be on the record. He asked whether the revelations would be authorised in the different cases to which he referred. I cannot give a clear answer to that because I cannot speculate on exactly what legislation the White Paper will lead to because the Bill is not drafted. Therefore, I cannot speculate on the decisions that will be taken by the responsible Ministers. However, I can speculate to the extent that I suspect that bits would have been authorised, but other bits would not. [Interruption.] The interesting bits.
The hon. and learned Member for Montgomery (Mr. Carlile) says from a sedentary position that that somehow exposes matters. It has been the practice for many years for decent people who have been in the services who want to write to seek authority to do so. They have been given authority for some things and denied it for others. That was the only point that I wanted to make.
The right hon. Member for Sparkbrook referred to the role of the staff counsellor. Sir Philip Woodfield is not a member of the service. His successors will not be members of the service. They are independent and act as a conduit to Ministers.
The hon. Member for Blaydon (Mr. McWilliam) was concerned about telephone tapping. In his interesting speech based on personal experience he admitted that there is protection in the Interception of Communications Act 1985. The right hon. Member for Sparkbrook forcefully raised the issue of "Spycatcher". That was also referred to by the right hon. Member for Blaenau Gwent. I agree with my hon. Friend the Member for Westminster, North (Mr. Wheeler) and other right hon. and hon. Members that a former member of the services should keep his or her counsel. Members should not break a lifelong duty of confidentiality without authorisation. That is a clear principle which underlies the White Paper.
Finally, the right hon. Member for Sparkbrook was charmingly concerned about the welfare of my right hon. Friend the Chancellor of the Exchequer, and about what happened when he went into purdah each year to discuss business concerned with the Budget. I do not believe that my right hon. Friend the Chancellor of the Exchequer will ever need the protection of criminal law under any circumstances. However, Budget leaks about alleged changes in tax codes, and so on, are not protected by criminal law. The only matters that will be are items of information coming from a source connected with my right hon. Friend and falling within one of the categories covered by the Bill, such as international relations.
As the Minister and others questioned the rule of confidentiality and its legal back-up in respect of Budget matters, I had inquiries made, and I am advised there are so many laws covering that aspect that, were Ito list them all, the Minister would not be able to rise to his feet again before four o'clock. Perhaps the Minister will look at the Taxes Management Act 1970, the Finance Act 1972 and the Income and Corporation Taxes Act 1970—-all of which require certain aspects of Budget policy to be maintained in secrecy. There are many more examples, covering almost every aspect of the Chancellor's day-to-day activities.
The right hon. Gentleman has clearly been doing his research, because earlier in the debate he was challenged to name all the laws to which he was referring but failed to do so.
I turn to points raised by my right hon. and learned Friend the Member for Richmond, Yorks (Mr. Brittan) and by my hon. Friend the Member for Aldridge-Brownhills. I congratulate my right hon. and learned Friend on his extremely distinguished speech—it was exactly the kind of speech one would expect from someone who was such a distinguished Home Secretary. I welcome the warm reception he gave to my right hon. Friend's White Paper, which was reflected by my hon. Friend the Member for Westminister, North. I welcome also the sentiment of my right hon. and learned Friend the Member for Richmond, Yorks, based on deep experience, that there is no longer any need for a public interest defence because the Government have circumvented that by the White Paper's proposals. I know that my hon. Friend the Member for Aldridge-Brownhills disagrees, but I much agree with that argument. I welcome my right hon. and learned Friend's reaffirmation of the lifelong duty of those in the services, though I differ from him in the need that he sees for expressing decisions on whether a publication should be allowed through a mechanism involving independent persons or an independent body.
My right hon. and learned Friend the Member for Richmond, Yorks and my hon. Friend the Member for Aldridge-Brownhills raised points concerning media reporting of disclosure by members of the services and the question whether the test of harm applies. There may be circumstances—and I choose my words carefully—where, for example, there is collusion between a member or former member of the security and intelligence services and a newspaper, where the newspaper could be an accessory to an offence committed by that member or former security services member—and "could" is the operative word. However, if the newspaper simply reported a disclosure that had been made on a separate occasion, the prosecution would have to prove that it was the newspaper's disclosure, and not that made by the member or former member of the services, that was likely to damage the operation of the security and intelligence services.
I am reminded by my hon Friend that I forgot the broadcasting media. There would be a test of harm, and it would be that the journalist—whether he worked in broadcasting or in newspapers—knew or had reasonable cause to believe that his disclosure was likely to cause harm.
My hon. Friend the Member for Aldridge-Brownhills expressed concern that the Government have not yet provided a list of international organisations that require information in confidence. A large number of organisations have an international dimension, and in the past many of them have supplied in confidence certain details to this or previous Governments. I dare say that they include the Ghana cocoa marketing board, which was the particular example given by my hon. Friend.
It would be difficult at this stage to drag out all the names from files going back many years, and I do not believe that it would serve any useful purpose. We must address the issue when we translate the White Paper concept into legislation. We are debating a White Paper; we are not at the end of a Second Reading debate on a Bill. All will be revealed on its publication, which I hope will be as soon as possible.
My hon. Friend the Member for Aldridge-Brownhills—